Marvin Omondi Ngei v Migori County Public Service Board

Memorandum of Appeal deemed duly filed upon payment of the requisite court fees. Lastly, he seeks to have the costs of the application abide by the outcome of the intended appeal. 2. The application is premised on the ground that the Applicant had sought review of the PSC’s decision dated 10 th April 2025 and, following the filing of written submissions, the PSC rendered its review decision on 8th October 2025. Although the decision was allegedly forwarded on 14th October 2025, the Applicant states that he only received it on 17th November 2025. He contends that this was outside the statutory period within which the PSC was required to render and communicate its decision under the Public Service Commission (County Appeals Procedures) Regulations, 2022. He further states that despite follow-up letters dated 31st July and 1st September 2025 seeking delivery of the decision, no response was received. 3. The Applicant contends that, having been unaware of the decision until 17th November 2025, he could not reasonably lodge an appeal within the prescribed period. He maintains that the delay was occasioned by the PSC’s failure to Page 2 of 17

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communicate its decision timeously and not by any indolence on his part. He states that he acted promptly upon receipt of the decision by seeking legal advice and commencing the process of lodging an appeal. The Applicant further contends that the intended appeal raises arguable issues concerning the PSC’s compliance with the prescribed timelines, procedural fairness, fair administrative action, the Applicant’s standing to institute the proceedings in the public interest, and the PSC’s requirement that he provide the names of public officers on whose behalf the original appeal had been filed. He also challenges the PSC’s decision to vary its earlier decision and strike out the original appeal. 4. The application is supported by the Applicant’s affidavit in which he reiterates these grounds and exhibits, among other documents, the application for review, correspondence seeking delivery of the decision, the PSC’s decision, the letter forwarding the decision, and a draft Memorandum of Appeal. He maintains that the intended appeal raises serious issues of law and fact, that the delay attributable to him is reasonable and excusable, and that the Respondent will suffer no prejudice if leave is granted. He therefore urges the Page 3 of 17

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Court to enlarge time and allow him to pursue the intended appeal in the interests of justice. 5. The Respondent opposes the application through the Replying Affidavit sworn by its Secretary and Chief Executive Officer, Mr. Andrew Ochola. The Respondent acknowledges that the Public Service Commission, by its decision dated 8th October 2025 in County Review No. 010 of 2025, allowed the Applicant’s review application to the extent of setting aside the finding that his redesignation was unlawful, varying the finding on his authority to act for other public officers, and striking out the original appeal dated 1st October 2024. The Respondent contends that although section 87(2) of the Public Service Commission Act provides for an appeal to this Court, such appeal is subject to the timelines prescribed under Rule 12(2) of the Employment and Labour Relations Court (Procedure) Rules. It maintains that the use of the word “shall” in the Rule makes the thirty-day period mandatory where no other period is prescribed by written law. Page 4 of 17

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6. The Respondent disputes the Applicant’s assertion that he received the Commission’s decision on 17th November 2025, contending that no tangible evidence, such as an email receipt or properly stamped acknowledgment, was produced to establish the alleged date of receipt. In any event, it argues that even if the decision was received on that date, the Applicant did not lodge the intended appeal until 17th April 2026, more than five months later. The Respondent therefore characterises the delay as inordinate and unexplained. It is further contended that this Court has its own distinct procedural rules and that the Applicant was not entitled to rely on the Civil Procedure Rules in seeking enlargement of time. The Respondent maintains that neither the Public Service Commission Act nor the Employment and Labour Relations Court Act expressly provides for leave to appeal out of time in the circumstances presented. It argues that the prescribed timelines promote orderly administration of justice and the finality of litigation. The Respondent further contends that allowing the application would occasion it substantial prejudice, having already incurred the expense and burden of prolonged litigation. It maintains that the Page 5 of 17

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Applicant is guilty of laches and cannot invoke an equitable remedy after failing to act diligently. 7. Finally, the Respondent challenges the Applicant’s reliance on the alleged delay by the Commission, arguing that the Commission is not a party to the present proceedings and has therefore not been afforded an opportunity to respond to the allegations concerning its conduct. It maintains that there is no nexus between the alleged late communication of the decision and the Applicant’s subsequent delay in lodging the intended appeal. The Respondent consequently urges the Court to decline the application. 8. In response, the Applicant reiterates that the issue before the Court is whether sufficient cause has been shown to enlarge time for filing the intended appeal, and not the merits of the appeal. He maintains that the PSC’s decision, though dated 8th October 2025, was only received on 17th November 2025, as evidenced by the receiving stamp on the forwarding letter. He contends immediately acknowledged receipt Page 6 of 17 that his advocates and requested the

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proceedings on 19th November 2025, demonstrating diligence on his part. 9. The Applicant explains that the subsequent period was utilised in obtaining legal advice, perusing the decision, obtaining proceedings and preparing an appeal raising substantial constitutional, statutory and public interest issues. He maintains that the intended appeal is arguable, particularly on the PSC’s compliance with statutory timelines, procedural fairness and fair administrative action, public interest litigation, the legality of the redesignation of Ward Administrators, and the interpretation of the PSC (County Appeals Procedures) Regulations, 2022. He further contends that the PSC itself contributed to the delay by communicating its decision outside the prescribed timelines and that the Respondent cannot rely on that delay to defeat his right of appeal. He maintains that the Court has jurisdiction to enlarge time under Rule 18 of the Employment and Labour Relations Court Rules, 2024 and the applicable provisions of the Civil Procedure Act, and that procedural rules should not be applied so as to defeat substantive justice. Page 7 of 17

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10. The Applicant also disputes the Respondent’s contention that the PSC ought to have been joined, arguing that the present application only seeks leave to appeal and that questions of joinder can be addressed in the intended appeal. He maintains that no prejudice will be occasioned to the Respondent if leave is granted, whereas refusal would deny him an opportunity to challenge a decision raising issues of significant public interest. He therefore urges the Court to grant leave to appeal out of time. 11. The application was canvassed by way of written submissions. Applicant’s Submissions 12. In support of the application, the Applicant identifies the following issues for determination: (a) Whether this Honourable Court has jurisdiction and discretion to enlarge time for filing an appeal out of time; Page 8 of 17

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(b) Whether the Applicant has established sufficient cause to warrant extension of time to file the intended appeal out of time; (c) Whether the Applicant has an arguable appeal with reasonable prospects of success; and (d) Whether the Respondent shall suffer prejudice if leave is granted. 13. On the first issue, the Applicant submits that the Court has jurisdiction and discretion to enlarge time under Rule 18 of the Employment and Labour Relations Court (Procedure) Rules, section 95 of the Civil Procedure Act, section 59 of the Interpretation and General Provisions Act, and Sections 1A, 1B and 3A of the Civil Procedure Act. Relying on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, Kiarie v Njuguna & 2 others [2021] KECA 210 (KLR), and Leo Sila Mutiso v Rose Hellen Wangari Mwangi (unreported), the Applicant submits that extension of time is discretionary and depends, inter alia, on the length and Page 9 of 17

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explanation of the delay, the chances of the appeal succeeding, and the prejudice to the Respondent. 14. On the second issue, the Applicant submits that the delay was sufficiently explained and was substantially occasioned by the PSC’s failure to communicate its decision dated 8th October 2025 until 17th November 2025. He contends that the forwarding letter, bearing the receiving stamp, establishes the date of receipt and that the Respondent has produced no evidence of earlier service. He further submits that he promptly followed up with the PSC for the decision and, upon receipt, his advocates acknowledged it and requested the proceedings on 19th November 2025. He maintains that the subsequent period was utilised to obtain instructions from the affected persons, obtain legal advice and prepare the intended appeal. Relying on Municipal Council of Mombasa v Republic; Umoja Consultants Ltd (Interested Party) [2002] KECA 8 (KLR), Shah v Mbogo [1967] EA 116, and Fakir Mohamed v Joseph Mugambi & 2 others [2005] KECA 340 (KLR), the Applicant submits that the delay was neither deliberate nor Page 10 of 17

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intended to obstruct justice and that procedural lapses ought not to defeat substantive justice. He further relies on Article 159(2)(d) of the Constitution and maintains that the PSC’s own failure to communicate its decision timeously substantially contributed to the delay. 15. On the third issue, The Applicant submits that the intended appeal raises bona fide and arguable questions concerning the PSC’s compliance with Regulations 22 and 24 of the PSC (County Appeals Procedures) Regulations, 2022; the right to fair administrative action under Article 47; the legality of the redesignation of Ward Administrators; the consideration of public interest litigation under Articles 22 and 258; and whether the PSC acted irrationally and disproportionately. Relying on Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 others [2013] eKLR and Judicial Service Commission v Mbalu Mutava & another [2015] KECA 741 (KLR), the Applicant submits that an arguable appeal need not succeed but must raise a bona fide issue deserving consideration by the appellate court. Page 11 of 17

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16. Lastly, on whether the Respondent will suffer prejudice, the Applicant submits that no prejudice incapable of compensation in law will be occasioned to the Respondent if leave is granted, as the intended appeal has not been heard and the Respondent will have a full opportunity to defend it on merit. Conversely, refusal of leave would permanently shut him out from exercising his statutory right of appeal. Relying on Richard Ncharpi Leiyagu v Independent Electoral and Boundaries Commission & 2 others [2013] KECA 282 (KLR), he submits that the right to be heard is fundamental and urges the Court to allow the application, deem the annexed Memorandum of Appeal duly filed upon payment of the requisite fees, and order that costs abide the outcome of the appeal. Respondent’s Submissions 17. The Respondent opposes the application. It submits that the Applicant has not demonstrated sufficient cause to warrant enlargement of time. It contends that Rule 12(2) of the Employment and Labour Relations Court (Procedure) Rules requires an appeal from a decision of the Public Page 12 of 17

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Service Commission to be filed within 30 days, and that the use of the word “shall” makes the timeline mandatory. The Respondent further submits that the Civil Procedure Act and Rules do not apply to proceedings before this Court unless expressly provided for under the applicable law or Rules. In support, it relies on Prisca Jepng’etich v Generation Career Readiness Social Initiative Ltd [2021] KEELRC 1672 (KLR), Republic v Karisa Chengo & 2 others [2017] eKLR and Ng’ang’a v Timsales Ltd [2024] KEELRC 13600 (KLR). 18. The Respondent disputes the Applicant’s assertion that the decision dated 8th October 2025 was received on 17th November 2025, contending that no tangible proof of such receipt, such as an email acknowledgment or properly authenticated receiving stamp, has been produced. It submits that, even if the Court accepts 17th November 2025 as the date of receipt, the Applicant did not seek leave until 17th April 2026, a delay of more than five months, which is inordinate and unexplained. It argues that the Applicant has failed to establish any nexus between the alleged delay by Page 13 of 17

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the Commission in communicating its decision and the subsequent delay in approaching the Court. 19. The Respondent further submits that neither the Public Service Commission Act nor the Employment and Labour Relations Court Act expressly provides for enlargement of the 30-day period. It therefore contends that the Applicant cannot rely on the Civil Procedure Act to circumvent the specific procedure applicable to appeals from the Commission. The Respondent maintains that allowing the application would occasion prejudice after the parties have already undergone prolonged and costly litigation. It further argues that the Applicant is guilty of laches, relying on the principle that equity aids the vigilant and not the indolent. 20. The Respondent also takes issue with the Applicant’s reliance on alleged procedural impropriety by the Commission in rendering and communicating its decision, arguing that the Commission is not a party to the present proceedings and has therefore not been afforded an opportunity to respond to those allegations. It contends that Page 14 of 17

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determining such allegations in the Commission’s absence would raise issues of procedural fairness. The Respondent relies on Union Insurance Co. of Kenya Ltd v Ramzan Abdul Dhanji [1997] eKLR, for the proposition that although a party is entitled to a fair hearing, that right must be exercised within a reasonable opportunity and cannot be used to dictate the pace of litigation. 21. The Respondent further submits that the Applicant failed to adequately explain the period between receipt of the decision and the filing of the present application. It contends that the Applicant ought to have set out that explanation in the supporting affidavit and, further, faults him for alleged non-compliance with the Court’s directions on filing submissions. It relies on Kirinyaga County Public Service Board v Kenya National Union of Nurses; Public Service Commission (Interested Party) [2025] KECA 2152 (KLR), Ahmed & 2 others v Mohamed & 2 others [2025] KECA 879 (KLR), Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR and Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others [2014] eKLR in support of the need for a satisfactory explanation for delay. Page 15 of 17

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In the circumstances, the Respondent urges the Court to find that the Applicant has not demonstrated sufficient cause for enlargement of time and to dismiss the application with costs. Disposition 22. The matter for determination is whether there is remit in extension of time. The Applicant’s assertion that he received the Commission’s decision on 17th November 2025. The Respondent contends that no tangible evidence, such as an email receipt or properly stamped acknowledgment, was produced to establish the alleged date of receipt. The Public Service Commission is also not a party and cannot therefore be put to task as to when the communication was made. The Court notes that even if the decision was received on the 17 th November 2025, the Applicant before me did not lodge the intended appeal until 17th April 2026. This was a period of over five months. The late filing is therefore one that characterises the delay as inordinate unexplained. Page 16 of 17 and to boot,

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23. The law has given the timelines for doing something and it uses the word “shall”. That does not suggest it is a mere aspiration as words such as ‘within 30 days’ or ‘by the end of 30 days’ connote. In my view, there is no basis laid for the extension of time and the motion before me fails and is dismissed albeit with no order as to costs. It is so ordered. Dated and delivered at Kisii this 28th day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 17 of 17

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