Busolo v Ganatra

5. He further asserts that the delay is not inordinate and that the intended appeal has overwhelming chances of success. 6. The Applicant avers that it is in the interest of justice and fairness that he be granted leave to le the appeal out of time and that the Respondent will not suer any prejudice if the orders sought are granted. Respondent’s Case 7. In opposition to the application, the Respondent led grounds of opposition dated 13th April 2026 on the grounds THAT: 1. The application is misconceived, bad in law, incompetent, and an abuse of the court process, as the Applicant has failed to demonstrate sucient or good cause warranting the exercise of the Court's discretion to extend time under the applicable laws. 2. The Applicant has not demonstrated any sucient cause to warrant the exercise of this Honourable Court’s discretion to extend time. 3. The only explanation given by the Applicant for the inordinate delay is alleged lack of nancial capability which is not a ground recognized in law for extension of time. 4. The applicant was represented by the same Advocate in the Magistrate Court. He had the option of applying for the appeal as a pauper but chose not to. 5. The delay in ling the intended appeal is inordinate, unexplained, and unjustied. The judgment was delivered on 22nd July 2025, and the application was led on 10th December 2025 (as per CTS records), resulting in a delay of over 6 months. Such prolonged delay far exceeds what can reasonably be excused and militates against granting the orders sought. 6. The intended appeal has no arguable or triable issues and stands no reasonable chance of success. 7. Granting the extension would cause substantial prejudice to the Respondent, including prolonged uncertainty, further legal costs after a fully litigated trial where the claim was dismissed with costs, and potential disruption to business operations long after the matter was concluded. 8. The Applicant has not acted with due diligence or in good faith. The application appears to be a belated attempt to re-litigate settled issues without merit, contrary to the overriding objective of expeditious and just resolution of disputes. 9. It is in the interest of justice, nality of litigation, and compliance with statutory timelines that the application be dismissed with costs. Applicant’s Submissions 8. The Respondent submitted on two issues: whether the Applicant has established sucient grounds for enlargement of time; whether the intended appeal raises triable issues; and who should bear the costs. 9. On the rst issue, the Applicant submitted that enlargement of time is an equitable remedy anchoring the constitutional right of access to justice. He cited the Supreme Court decision in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR: “Discretion to extend time was indeed unfettered. It was incumbent upon the applicant to explain https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2083/eng@2026-07-20 2

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the reasons for delay in making the application for extension and whether there were any extenuating circumstances that could enable the court to exercise its discretion in favour of the applicant.” 10. It is the Applicant's submission that following his unlawful termination from employment, he was deprived of his only source of livelihood and was consequently unable to retain and/or continue instructions to prosecute the appeal in time. 11. He submitted that his lack of nancial capability constitutes sucient cause for extension of time within the meaning of Rule 4 of the Court of Appeal Rules. 12. The Applicant further submitted that the principle that poverty and nancial incapacity should not bar access to justice is constitutionally anchored under Article 48 of the Constitution, which guarantees that fees shall not be a barrier to access to justice, and Article 50, which guarantees the right to a fair hearing, arguing that a strict application of time limits against a nancially incapacitated litigant would amount to a denial of these guarantees. 13. The Applicant submitted that under Article 159(2)(d) of the Constitution, this Court is mandated to administer substantive justice without undue regard to technicalities, and that denying the extension would highly prejudice him given that the delay was occasioned by circumstances entirely outside his control. 14. On the second issue, the Applicant submitted that jurisprudence dictates that an arguable appeal is not necessarily one that must succeed, but must not be frivolous and must raise points of law or mixed fact and law that warrant the Court’s appellate scrutiny. 15. It was submitted that the intended appeal raises weighty, triable issues, specically whether the trial court erred in fact and in law by failing to nd that the Regulation of Wages (General) (Amendment) Order, 2018 provided the monthly pay for a Caretaker to be Kshs. 28,147.60. 16. He submitted that he was employed as a Caretaker in Nairobi County earning Kshs. 11,500, later reviewed to Kshs. 12,500, whereas pursuant to the said Regulation gazetted on 8th January 2019, a caretaker was to be paid Kshs. 28,147.60, thus, he ought to have been awarded Kshs. 187,771.20 being the underpayment for twelve months. He pointed out that the trial court, at paragraph 16 of its judgement, had conrmed that he was indeed employed as a Caretaker and ought to have been paid accordingly. 17. The Applicant submitted that this demonstrates that the intended appeal is not frivolous and raises genuine and arguable questions of law and fact meriting determination by the Court, and that the Respondent would suer no prejudice if the application is granted, whereas the Applicant would be permanently foreclosed from ventilating his grievances if it is not allowed. 18. On costs, it was submitted that the application has merit and should be allowed, with the Respondent bearing the costs of the application. Respondent’s Submissions 19. The Respondent submitted that the power to extend time is discretionary and is exercised judiciously, not whimsically. The applicable principles having been settled by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, where it emphasized that: extension of time is not a right but an equitable remedy; the applicant must lay a basis to the satisfaction of the court; delay must be explained to the satisfaction of the court; and the application must be brought without undue delay. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2083/eng@2026-07-20 3

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20. It was further submitted that under Rule 18 of the Employment and Labour Relations Court (Procedure) Rules, timelines for ling appeals and related processes are mandatory unless sucient cause is demonstrated. 21. On whether sucient cause was demonstrated, the Respondent submitted that the Applicant failed to do so, as nancial incapacity is not a legally recognised ground for extension of time. 22. It argued that courts have consistently held that litigants lacking nancial means have recourse to pauper procedures, which the Applicant failed to invoke despite being represented by counsel. 23. In support thereof, it cited Wambui v Njoroge [2025] KEHC 17050 (KLR) where the court, at paragraph 17, held: “…….. Financial constraints is not a good reason for delay as was held in the foregoing authorities. Furthermore, the ling fees for a Memorandum of Appeal is minimal. The applicant still had the right to apply to sue or appeal as a pauper. In my view, the applicant has not given any plausible reasons for the delay in ling the appeal.” 24. On the delay, it was submitted that a delay of over six months is plainly inordinate and that no satisfactory explanation had been oered. Reliance was placed on Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, “ The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s ow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” 25. It is the Respondent’s submission that the Applicant has not demonstrated any eort toward ling an appeal within time. He has failed to produce any evidence of any request for proceedings or any step indicative of an intention to appeal, a fact rendered telling by the same advocate having represented him throughout, pointing to indolence rather than inability. Reliance was further placed on Vyas Hauliers Limited v Kimolo (Deceased) & another [2024] KEELRC 13655 (KLR), where the court, at paragraphs 22–23, held that in the absence of a cogent reason, the court will decline to extend time even by a day. 26. On whether the intended appeal is arguable, it was submitted that the Applicant failed to demonstrate any arguable issue, mere dissatisfaction with a judgment being insucient. The draft memorandum of appeal raises no arguable case as the lower court had adjudicated fully on the issue. 27. On prejudice, the Respondent submitted that the Respondent would suer substantial prejudice if the application were allowed, as the matter had been fully heard and determined with costs. Further, granting the application would reopen concluded litigation and subject the Respondent to additional costs thus undermining the principle of nality in litigation. 28. On good faith and diligence, the Respondent submitted that the Applicant has not acted in good faith or with diligence on grounds that despite being represented by the same advocate, he: took no steps to appeal within time, he did not request proceedings, and failed to invoke pauper procedures despite alleging nancial incapacity. 29. It argued that the application a clear afterthought and an attempt to relitigate a concluded matter contrary to the overriding objective of expeditious dispute resolution. 30. I have examined all the averments and submissions of the parties herein. The applicant seeks leave to le an appeal out of time on the ground that he had nancial diculties following his dismissal and could not nd his bearing to le the appeal within time. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2083/eng@2026-07-20 4

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31. This court has jurisdiction to grant the orders sought exercised judiciously discretionary. In applying the power of the court, I note that the reasons given by the applicant whereas not exceptional relates to his economic power to access justice. A litigant should not be denied such access due to economic disadvantage. 32. I have also considered the fact that the appeal raises triable issues especially whether the remedies sought were established and therefore allowable. 33. In the circumstances, I nd the application is meritorious. I exercise my discretion and allow the application to le the appeal out of time and in any case in not more than 14 days from today. Costs will abide the outcome of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF JULY 2026. HELLEN WASILWA JUDGE Page 4 of 4 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2083/eng@2026-07-20 5

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