keelrc-2025-01957

5. The Court erred by issuing the said judgments on cases involving identical facts in the same trial court, without providing a clear basis and reasons for such a determination. It is for this reason that the Applicant feels compelled to appeal against the judgment, the subject matter of this application. 6. It is further contended that the Trial Court misdirected itself when it, in its said judgment, failed to analyse suficiently the overwhelming evidence that the Applicant presented. 7. The applicant is likely to sufier irreparable loss, as it partially settled the suit during mediation but disputed the Respondent’s claim for unfair termination. 8. Because the subject matter in the suit, whose judgment is the focus of this application and a series of other cases, was the same, it did not provide its Advocates with instructions in time to challenge the judgment by way of appeal. 9. The failure to appeal on time was inadvertent and resulted from its delay in waiting for the outcome of other similar suits. 10. That the instant application has been brought without undue delay. It was filed within 35 days after the trial court granted the stay of execution. Respondent’s Response 11. The Respondent opposes the application through the replying afidavit mentioned above, arguing that the Applicant has not demonstrated suficient cause for the delay and that the application is without merit. The Respondent also contends that the delay is inordinate. 12. She states that the trial court delivered the judgment via email on 23rd September 2024. 13. Mombasa ELRC E 486 of 2021 was a separate suit. The suit and the one whose judgment the Respondent intend to appeal were heard on difierent dates before the trial court. 14. The intended appeal has no merit, considering that the trial court suficiently identified and analysed issues in controversy before rendering its judgment. 15. Following the expiration of the 30-day stay period granted by the learned trial Magistrate, the Respondent was issued with a notice of entry of judgment and a draft decree on 18th November 2024. 16. The Applicant has come to Court with unclean hands. The application and the intended appeal are only meant to deny her the fruits of her judgment unjustly. Issue for Determination 17. The sole issue for determination is whether the Applicant has demonstrated suficient cause to warrant the extension of time to file an appeal out of time. 18. In determining whether to extend time, the court is guided by a well-established body of jurisprudence. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, the Court of Appeal held that: “ It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It should be exercised judicially and not arbitrarily or capriciously. In general, the matters which this Court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly, the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1957/eng@2025-06-26 2

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19. The burden rests with the Applicant to explain each period of delay and demonstrate that the delay was neither inordinate nor deliberate. See also Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR. 20. The record shows that the impugned judgment was delivered on 23rd September 2024, but the present application was only filed on 23rd November 2024. This refiects a delay of approximately two months. 21. I have carefully examined the Applicant’s afidavit and, specifically, the reasons it provides for the delay in filing the appeal. I must state that these reasons are general in nature and least persuasive. I do not see how the other matter informed the Respondent's failure to instruct its Counsel in a timely manner to appeal. 22. Having found that the Respondent did not provide any suficient and persuasive reason for the failure to file its appeal within the time limit, I consider it unnecessary to proceed with examining the other factors, and I hereby find the application dated 23rd November 2024 to be without merit; it is accordingly dismissed. 23. Additionally, as the appeal herein was filed without leave of the Court, it is hereby struck out with costs. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 26TH DAY OF JUNE 2025. OCHARO KEBIRA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1957/eng@2025-06-26 3

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