China Wu Yi Limited v Erick Langat

concrete evidence of the employment status. Page 2 of 10

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2. By an application dated 6th October 2025, the applicant moved the same court seeking to review the above orders. Mwaure, J. dismissed the said application by a ruling dated 6th February 2026 on grounds inter alia it did not satisfy the grounds for review set out in Rule 74 (1) of the Employment and Labour Relations Court. 3. The applicant is now before this Court vide his application dated 27th August 2026 seeking the following orders: (a) extension of time to lodge and serve a notice of appeal against the Ruling/Order of the Employment and Labour Relations Court (ELRC) at Nakuru delivered on 6th February 2026 in ELRC Appeal No. E030 of 2025, China Wu Yi Limited v Eric Langat; (b) leave to lodge and serve the notice of appeal against the said ruling within 7 days from the date of the order of this Court, or within such other period as this Court may direct; (c) the time within which the applicant is required to request, obtain and serve the proceedings be extended, and the applicant be at liberty to make and serve the requisite request for proceedings within the period directed by this Court; (d) upon grant of the foregoing prayers, the time for instituting the intended appeal shall run from the Page 3 of 10

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date of the ruling/order of this Court and/or from such date as may be reckoned in Page 4 of 10

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accordance with the Court of Appeal Rules, 2022, and the applicant be granted leave to lodge and serve the memorandum of appeal and record of 30 days therefrom, or within such other period as this Court may direct; (e) pending the lodging and determination of the intended appeal, and upon the notice of appeal being duly lodged pursuant to the orders of this Court, the applicant be at liberty to move this Court for appropriate preservatory orders under Rule 5 (2) (b) of the Court of Appeal Rules, 2022; and, (f) the costs of this application abide the outcome of the intended appeal. 4. Prayer (e) falls outside the purview of the jurisdiction of a single judge as contemplated under Rule 4 of the Court of Appeal Rules, 2022. I say no more about it. 5. The grounds in support of the application are; (a) the applicant is aggrieved by the ruling delivered by the ELRC on 26th September 2025 in which it dismissed his application for review; (b) after the impugned ruling the applicant acting on the finding of the ELRC moved to the High Court at Narok seeking reinstatement of HCCC No. E016 of 2025 and stay of execution, but by a ruling dated 30th July 2026, the High Court declined to reinstate the Page 5 of 10

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suit; (c) the delay was occasioned by bona fide pursuit of reliefs in court; (d) the Page 6 of 10

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applicant did not consider it appropriate to mount suits in two forums, therefore, the delay was not intentional; (e) the applicant acted in good faith; (f) the intended appeal is arguable and it relates to determining a pertinent jurisdictional question, and, (g) the balance of prejudice favours granting the said orders. 6. The respondent in opposition to the application filed a replying affidavit dated 1st October 2026. The salient averments are: (a) the applicant failed to lodge its notice of appeal within 14 days; (b) the applicant deliberately ignored procedural timelines and proceeded to invoke a different jurisdiction which is inappropriate; (c) the applicant admits they opted to pursue proceedings before the High Court instead of the Court of Appeal; (b) the delay is unjustified and inexcusable due to lack of a satisfactory explanation; (d) the entire delay has not been explained; (e) court rules are designed to promote swift justice and timelines are mandatory; (f) the applicant has failed to demonstrate why this Court should exercise its discretion in its favour; (h) the respondent stands to suffer prejudice if the application is allowed; (i) the existence of a joint interest earning account does not extinguish the Page 7 of 10

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prejudice. Page 8 of 10

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7. In support of the application, the applicant filed submissions dated 29th September 2026. The applicant relies on Rule 4 and maintains that the Court basically reviews whether an applicant has justified the delay and whether he merits discretionary intervention. To merit the exercise of discretion, an applicant must offer a satisfactory explanation for the delay, promptness in filing the application, arguability of the appeal and the interests of justice. The applicant maintained that the delay was caused by ongoing proceedings. Further, the applicant acted within 23 days after the High Court ruling. The applicant also argued that the intended appeal raises pertinent arguable grounds relating to workplace injury. 8. In support of his case, the applicant cited Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR) in support of the proposition that extension of time is an equitable remedy, and that this Court has the discretion to grant the reliefs sought. The applicant also relied on Fakir Mohamed vs. Joseph Mugambi & 2 Others [2005] KECA 340 (KLR) to urge that the Court considers factors such as the arguability of Page 9 of 10

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the appeal, conduct of the parties, finality of litigation and the interests of justice. Also cited is Muringa Company Limited Page 10 of 10

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vs. Archhiodioce of Nairobi Registered Trustees [2020] KECA 761 (KLR) in support of the principle that the Court must balance finality with the right to be heard. Further, the existence of security justifies the plea for extension of time. 9. Other authorities cited by the applicant include Andrew Kiplangat Chemaringo vs. Paul Kipkorir Kibet [2018] KECA 701 (KLR) to inter alia urge that there is no fixed period of delay, what matters is a clear and plausible explanation for the delay. Lastly, the applicant cited Law Society of Kenya, Nairobi Branch vs. Malindi Law Society and 6 Others [KECA] 231 to inter alia highlight the complexity of jurisdictional questions in employment disputes. 10. The respondent filed submissions dated 30 th September 2026. The salient argument includes, an equitable remedy requires justification, the delay from 6 th February 2026 to 27th August 2027 has not been accounted for, pursuing another forum does not warrant automatic extension and the conduct must be evaluated holistically. Further, the courts consider the period of the delay, reasons for the Page 11 of 10

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delay, prejudice to the respondent and whether issues of public interest are involved. The respondent maintained that it risks suffering prejudice if the orders sought are granted. Page 12 of 10

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11. The applicant’s main explanation for the delay is that after the ELRC dismissed its application, it sought relief before the High Court, therefore, it was not idle, meaning, it did not go to sleep, but it was actively pursuing its rights. This argument is attractive. But, that is how far it goes. This Court has consistently held that filing an application for review, setting aside or varying an order or a judgment in a lower court does not pause, suspend, or stop the statutory 14-day clock prescribed under Rule 77 (2) of the Court of Appeal Rules, 2022. 12. A party cannot pursue a review mechanism as a way to excuse their failure to lodge a timely notice of appeal. The position of the law dictates that the two tracks (review in the court of first instance and appeal to the Court of Appeal) are parallel, distinct remedies. This Court in National Bank of Kenya Limited vs. Anaj Warehousing Limited [2015] eKLR held that an application for review before the High Court does not operate as a stay of the timeline required to file a notice of appeal. The Court noted that a litigant who chooses to seek a review must still safeguard their appellate rights by filing a notice of appeal within the Page 13 of 10

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statutory framework. Pursuing a review does not constitute an "automatic reason" or a lawful Page 14 of 10

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excuse for delaying an appeal. In the same parity of reasoning, after its application for review was dismissed by the ELRC, moving to the High Court did not pause the statutory clock to file notice of appeal to appeal to this Court. 13. This Court in Pan Africa Life Assurance Limited vs. Sunset Paradise Homes Limited & 2 Others [2017] eKLR emphasized that the statutory timelines under the Court of Appeal Rules are strict and cannot be paused by external strategic litigation manoeuvres, such as filing review applications in the trial court. 14. As was held in Housing Finance Company of Kenya vs. Embakasi Properties Ltd [2012] eKLR, the "ticking clock" to signal an intention to appeal is independent of any applications pending determination in other registry. (See Karisa vs. Motrex Limited [2025] KEHC 5936 (KLR)). 15. To avoid being locked out by Rule 77 (2), the procedurally safe approach recognized by Kenyan courts is for a disgruntled litigant to file the notice of appeal within 14 days as a cautionary measure, even while their application for review or other proceedings are pending determination Page 15 of 10

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in the lower Page 16 of 10

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court. This preserves their window of appeal without violating the rules of this Court. 16. By now it is evidently clear that the legal position is firmly established by this Court is that filing an application for review or initiating subsequent proceedings before a trial court does not halt, suspend, or toll the statutory clock for filing an appeal. This Court has firmly established that a party cannot rely on the pendency of subsequent trial court motions (such as applications for review, modifications, or setting aside ex parte decrees) as an automatic justification for missing an appellate deadline. The statutory clock to appeal does not freeze, and choosing to pursue an alternative trial-court remedy is done at the litigant's own procedural risk. 17. To satisfy the Court when seeking a condonation of delay, the applicant must establish that they were completely prevented by an absolute, unavoidable obstacle. Because a litigant is legally capable of filing a cautionary notice of appeal while simultaneously prosecuting a subsequent application before the trial court, the failure to do so is viewed by courts as an impermissible omission rather than a satisfactory explanation. Page 17 of 10

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18. However, this Court exercises its unfettered judicial discretion guided by the landmark Supreme Court of Kenya decision in Nicholas Kiptoo Salat vs. IEBC & 7 Others (supra). The Court measures the application against several parameters. As is evident from the above discussion, the pendency of proceedings before the lower courts is not a satisfactory explanation. Therefore, I am not persuaded that this is a proper case for me to exercise my discretion in favour of the applicant. Accordingly, the application dated 27th August 2026 is hereby dismissed with costs to the respondent. Dated and delivered at Nakuru this 7th day of October, 2026. J. MATIVO .......................... . JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. DEPUTY REGISTRAR. Page 18 of 10

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