Mohamed v State Corporation Advisory Committee & 3 others
The bottom line
#Kenya's Court of Appeal gave a litigant a second chance to file his appeal late, showing courts will forgive short, explained delays.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted extension of time to lodge and serve the Notice and Record of Appeal against the ELRC judgment
- 2.Whether the delay of about 1 month and 8 days was inordinate and sufficiently explained
- 3.Whether the respondents would suffer prejudice if the extension was granted
Key legal issues
#Length of delay
A delay of about 1 month and 8 days in filing the motion was not inordinate.
The judgment was delivered on 20th March 2025 and the motion filed on or about 28th April 2025. The single Judge found this period of roughly one month and eight days modest and not inordinate, weighing it against the other rule 4 factors.
Reason for delay
The applicant's absence from the country was accepted, albeit reluctantly, as a reasonable explanation for the delay.
Passport copies evidenced the applicant's departure on 2nd January 2025. Although he did not state when he returned, and the 2nd respondent argued instructions could be given virtually, the Judge accepted the explanation because the delay was not inordinate and the application was largely unopposed.
Arguability of intended appeal
A single Judge cannot determine the arguability of the intended appeal and declined to delve into that factor.
The Judge held that assessing the merits of the intended appeal is beyond the remit of a single Judge exercising rule 4 jurisdiction, so the third Salat factor was left undetermined rather than resolved against the applicant.
Prejudice
The applicant would be prejudiced by denial of the extension as his right of appeal would be foreclosed; the respondents would suffer no prejudice since the petition was merely dismissed.
The Judge found that refusing the motion would oust the applicant completely from the seat of justice, while the respondents, whose position was that the petition was merely dismissed, would suffer no prejudice from the appeal being lodged out of time.
Legal principles established
#- In deciding whether to extend time, 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.
- A single Judge's discretion under rule 4 is wide and unfettered but must be exercised judiciously.
Court orders
#- 1.The applicant's motion dated 28th April 2025 is allowed as prayed; leave granted to appeal out of time
- 2.The applicant to file the appeal within 30 days from the date of the ruling, failing which the orders shall stand vacated
- 3.Costs of the motion to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court
- Nairobi ELRC Petition No. E079 of 2024
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act, Cap 9; rule 4 of the Court of Appeal Rules 2022; article 159 of the Constitution of Kenya 2010; single Judge jurisdiction under rule 4
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the applicant's motion dated 28th April 2025, is merited and the same is hereby allowed as prayed.
The applicant shall proceed to file the appeal within a period of 30 days from the date of this ruling, failure to which these orders shall stand vacated.
The costs of this motion shall abide the outcome of the intended appeal.
It is now settled that the decision whether or not to extend the time for appealing is essentially discretionary.
the applicant will stand to suffer prejudice if the instant motion is not allowed as he will have been completely ousted from the seat of justice thereby foreclosing his right of appeal.
Issues in the judgment
#Paragraph 5 says no response from 1st & 2nd respondents, but the 2nd respondent filed grounds of opposition and submitted.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed v State Corporation Advisory Committee & 3 others", Case Analysis (2025). Civil Application E278 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2265/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.