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Court of AppealPartially AllowedNot stated in judgment (application under Rule 4 of the Court of Appeal Rules)

County Government of Vihiga v Kenya Union of Clinical Officers & 76 others (Civil Appeal (Application) E243 of 2024) [2026] KECA 12 (KLR)

Court of Appeal of Kenya
21 January 2026
LKL. Kimaru
1,107 words in judgment
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The bottom line

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Kenya's Court of Appeal gave Vihiga County Government more time to appeal a salary-arrears judgment, ruling that an honest mistake shouldn't destroy its right to appeal.

What this practically means

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Executive summary

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The County Government of Vihiga moved the Court of Appeal under Rule 4 of the Court of Appeal Rules for leave to file and serve its notice of appeal out of time, aggrieved by decisions arising from Bungoma ELRC Cause No. 32 of 2021, in which the respondents successfully claimed unpaid salary arrears. The applicant explained that the trial court delivered an interim Judgment without final orders, directing the parties to negotiate quantum; when negotiations failed, the trial court computed the arrears in a Ruling of 30th November 2023. The applicant appealed against that Ruling, only to be told by this Court on 31st July 2025 that no valid notice of appeal had been filed because it had not challenged the original interim Judgment. It filed the present application within seven days of that decision. The respondents opposed, alleging the application was designed to delay the case and frustrate them from enjoying the fruits of their judgment, noting they had worked some twenty to twenty-two months without pay. Applying the Wells Fargo principles - length of and reasons for delay, prejudice, and the constitutional right of appeal - the Court found the applicant's mistaken belief about which decision required a notice of appeal to be a convincing, human error, and noted its diligence in correcting the misstep within seven days of being alerted. The Court held that objections going to the merits of the intended appeal fall outside the scope of a Rule 4 application. The application was allowed, with fourteen days to file and serve the notice of appeal, forty-five days from service to file the record of appeal, and costs of the application awarded to the respondents.

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 has given sufficient reasons for the delay in lodging the notice of appeal in time
  2. 2.Whether the extension of time should be granted in light of the prejudice to the respondents and the applicant's constitutional right of appeal

Key legal issues

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01

Whether the applicant's misapprehension of the effect of the interim Judgment constituted a sufficient reason for the delay

Holding

Yes; the mistake was a human error and, given prompt corrective action, should not be punished at the expense of the constitutional right of appeal

Reasoning

The applicant wrongly assumed its grievance lay with the subsequent Ruling rather than the interim Judgment, and only learned of the error when this Court pointed it out on 31st July 2025. It filed the present application within seven days of that decision. The Court held that such mistakes, being human, should not be punished to the detriment of the right of appeal, and that the applicant was diligent once aware of the procedural error.

p. 2
02

Whether the respondents' objections on merits, review and jurisdictional grounds defeated the application

Holding

No; issues going to the merits of the intended appeal are beyond the remit of the Court on a Rule 4 application

Reasoning

The respondents' lengthy replying affidavit attacked the desirability of the intended appeal and alleged delay and endless litigation. The Court held that such issues concern the merit or otherwise of the intended appeal, which is outside the scope of an extension-of-time enquiry.

p. 3

Legal principles established

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  • In a Rule 4 application the Court exercises an unfettered discretion guided by settled principles including length of and reasons for delay, possible prejudice, and the balancing of a party's constitutionally underpinned right of appeal against the interests of the party with a decision in its favour
  • On a Rule 4 extension-of-time application, the Court does not examine the merits or otherwise of the intended appeal

Court orders

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  1. 1.The application is allowed
  2. 2.The applicant shall file and serve the notice of appeal within fourteen (14) days of today's date
  3. 3.The applicant shall file and serve the record of appeal within forty five (45) days of service of the notice of appeal
  4. 4.The respondents shall have the costs of the application

The bench

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

LK
majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court, Bungoma
ELRC Cause No. 32 of 2021
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (inherent jurisdiction to extend time)

Relief refused

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Respondents' request for dismissal of the application with costs

Their objections raised the merits of the intended appeal, which is beyond the remit of the Court on a Rule 4 application

p. 3

Costs

The respondents shall have the costs of the application.

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.

In application under Rule 4 of the Court of Appeal Rules, this Court has unfettered discretion to consider whether or not to grant the application.
p. 2Rule 4 discretion
Such mistakes, being human, in the circumstances of this application, cannot be punished to the detriment of the applicant's constitutional right of appeal to this Court.
p. 2Reason for delay
The objection to the application by the respondents in their lengthy replying afidavit, essentially, raised issues of merit or otherwise of the intended appeal which is beyond the remit of this Court when considering the present application.
p. 3Scope of Rule 4 enquiry
It is hereby allowed. The applicant shall file and serve the notice of appeal within fourteen (14) days of today's date. They shall file and serve the record of appeal within forty five (45) days of service of the notice of appeal. The respondents shall have the costs of the application.
p. 3Final orders

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, "County Government of Vihiga v Kenya Union of Clinical Officers & 76 others (Civil Appeal (Application) E243 of 2024) [2026] KECA 12 (KLR)", Case Analysis (2026). Not stated in judgment (application under Rule 4 of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/12/eng@2026-01-21

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