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Court of AppealAllowedNot stated (application dated 1st October 2024; notice of appeal from ELRC Cause No. 1525 of 2018)

Mutua v Fly Air Limited (Civil Application E516 of 2024) [2025] KECA 1298 (KLR)

Court of Appeal of Kenya
18 July 2025
690 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed a worker to file his appeal late, ruling that delays in getting court documents and losing touch with a lawyer are good reasons for extension.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal, Nairobi, delivered by D. K. Musinga (President) on 18th July 2025, on the applicant's notice of motion dated 1st October 2024. The applicant sought leave for the firm of Eboso & Co. Advocates to come on record and an extension of time to file a memorandum and record of appeal against the judgment of the Employment and Labour Relations Court at Nairobi in Cause No. 1525 of 2018, delivered on 22nd November 2023, in which his claim for wrongful dismissal and unfair termination was determined. The statutory period lapsed because the typed proceedings took 111 days to be processed, with a certificate of delay issued on 24th April 2024, and because the applicant lost contact with his previous advocate after the advocate moved offices. The respondent opposed, alleging inordinate and unexplained delay, absence of an arguable appeal, and prejudice. The application was canvassed by written submissions on 9th July 2025; the respondent did not file submissions. Applying the established factors for extension of time, drawn from Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR, the court found the delay well explained, the intended appeal not frivolous, and the respondent's claimed prejudice unexplained. It held that the applicant would be more prejudiced than the respondent if denied his constitutional right of appeal. The court granted leave to Eboso & Co. Advocates to come on record, extended time to file the memorandum and record of appeal within 14 days, and ordered costs of the application to be in the appeal. This is an interlocutory decision, not a determination of the appeal itself.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted leave for the firm of Eboso & Co. Advocates to come on record
  2. 2.Whether the applicant should be granted extension of time to file a memorandum and record of appeal out of the statutory period

Key legal issues

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01

Whether the delay of over 100 days in filing the memorandum and record of appeal was sufficiently explained

Holding

Yes. The delay was satisfactorily explained, principally by the delay in obtaining certified proceedings and the loss of contact with the previous advocate.

Reasoning

The court found the delay fairly long but well explained. It placed particular weight on the certificate of delay issued on 24th April 2024 evidencing 111 days in processing typed proceedings, and on the applicant's inability to trace his former advocate after the advocate moved offices.

p. 2
02

Whether the respondent would suffer prejudice if extension was granted

Holding

No cogent prejudice was demonstrated; the applicant's constitutional right of appeal outweighed the unsubstantiated claim of prejudice.

Reasoning

The respondent merely asserted prejudice without explaining its nature. Weighing the circumstances causing the delay against the nature of the intended appeal, the court held the applicant would suffer greater prejudice if denied the right to appeal, and so exercised its discretion in his favour.

p. 2
03

Whether the intended appeal was frivolous

Holding

No. On a perusal of the impugned judgment and the draft memorandum of appeal, the intended appeal was arguable.

Reasoning

The judge examined the impugned judgment alongside the draft memorandum of appeal and formed the view that the intended appeal was not frivolous, satisfying the arguability limb of the extension-of-time test.

p. 2

Legal principles established

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  • In an extension-of-time application the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

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  1. 1.Leave granted to the firm of Eboso & Co. Advocates to come on record for the applicant
  2. 2.Extension of time granted for filing the memorandum and record of appeal
  3. 3.Memorandum and record of appeal to be filed and served within 14 days from the date of the ruling
  4. 4.Costs of the application to be in the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court, Nairobi
Cause No. 1525 of 2018
Jurisdiction invoked
Inherent discretion of the Court of Appeal to extend time and admit advocates on record (extension of time jurisdiction)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The factors that guide this Court in an application for extension of time include the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, among others.
p. 2Factors for extension of time
The certificate of delay issued on 24th April 2024 speaks for itself.
p. 2Evidential weight of certificate of delay
I think the applicant will be more prejudiced than the respondent if he is not allowed to exercise his constitutional right of appeal.
p. 2Right of appeal outweighing unsubstantiated prejudice
I grant leave to the firm of Eboso & Co. Advocates to come on record for the applicant and extend time to file the memorandum and record of appeal as sought. The same should be filed and served within 14 days from the date hereof.
p. 2Final orders
The costs of the application shall be in the appeal.
p. 2Costs

Issues in the judgment

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minor

The judgment does not state the names of the parties or the case number of the application; only the underlying ELRC cause number is given.

minor

The judgment is signed only by D. K. Musinga as President, without indicating the panel composition, and is styled as a single-judge disposition.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mutua v Fly Air Limited (Civil Application E516 of 2024) [2025] KECA 1298 (KLR)", Case Analysis (2025). Not stated (application dated 1st October 2024; notice of appeal from ELRC Cause No. 1525 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1298/eng@2025-07-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.