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Court of AppealAllowedNot stated in the judgment (Notice of Motion dated 1st August 2025)

Mogere v Telkom Kenya Limited (Civil Application E474 of 2025) [2026] KECA 381 (KLR)

Court of Appeal of Kenya
27 February 2026
1,057 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave a litigant more time to seek Supreme Court review after a court e-filing system failure derailed her application.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi, delivered by Jamila Mohammed, JA, on 27th February 2026, on a Notice of Motion dated 1st August 2025 brought under Rules 4 and 33 of the Court of Appeal Rules, 2022. The applicant, Josephine Obaga Mogere, sought extension of time to file an application for certification to appeal to the Supreme Court under Article 163(4)(b) of the Constitution. Judgment of the Court of Appeal had been delivered on 2nd May 2025, and the applicant had lodged her certification application on 16th May 2025, within the fourteen days prescribed by Rule 39 of the Supreme Court Rules, 2020. Due to a malfunction in the Court Transmission System, the application was pulled down from the e-filing portal and marked as technically declined without notification to counsel; the anomaly was discovered on 31st July 2025 and the motion filed the following day. The respondent filed no response and demonstrated no prejudice. Applying the settled factors in Leo Sila Mutiso v Hellen Wangari Mwangi, as elaborated in Fakir Mohamed and Salat, and emphasising that rules of procedure are handmaidens of justice, the court held that the delay was satisfactorily explained, was caused by a system malfunction beyond the applicant's control, and that the intended appeal raised arguable questions of general public importance concerning Articles 41 and 47 on termination of employment. The motion was allowed; time was extended by fourteen days for filing and service of the certification application, with no order as to costs. The intended certification application itself remains to be determined.

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 extension of time to file an application for certification to appeal to the Supreme Court under Article 163(4)(b) of the Constitution
  2. 2.Whether the explanation for the delay was satisfactory and whether the respondent would suffer prejudice if the extension were granted

Key legal issues

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01

Extension of time to seek certification to appeal to the Supreme Court

Holding

Extension was granted where the certification application was initially filed within time, the delay was caused by a court e-filing system malfunction beyond the applicant's control, the applicant acted promptly on discovery, the respondent filed no response and showed no prejudice, and arguable constitutional questions were raised.

Reasoning

The court applied the settled Sila Mutisi factors (length of delay, reason for delay, chances of success, prejudice) as elaborated in Fakir Mohamed and Salat. It held that procedural rules must facilitate rather than obstruct the constitutional right of appeal upon certification under Article 163(4)(b), read with Article 48 access to justice and Article 159(2)(d) against undue technicality. A credible, uncontroverted explanation and absence of prejudice justified sustaining the appellate chain.

p. 3

Legal principles established

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  • Rule 4 of the Court of Appeal Rules confers a wide but judicially exercised discretion to extend time, guided by the settled factors of length of delay, reason for delay, chances of success and prejudice; where the extension enables pursuit of certification to the Supreme Court under Article 163(4)(b), constitutional values of access to justice and avoidance of undue technicality inform the exercise.

Court orders

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  1. 1.The Notice of Motion dated 1st August 2025 is allowed
  2. 2.Time is extended to enable the applicant file and serve the application for certification to appeal to the Supreme Court within fourteen (14) days from the date of the order
  3. 3.No order as to costs

The bench

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

majority

Wrote the judgment

On appeal from
Environment and Land Court (ELC)
Jurisdiction invoked
Rules 4 and 33 of the Court of Appeal Rules, 2022, in relation to intended certification to appeal to the Supreme Court under Article 163(4)(b) of the Constitution

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 equitable discretion under Rule 4 must therefore be exercised in harmony with constitutional values.
p. 3Rule 4 discretion and constitutional values
Article 48 guarantees access to justice. Article 163(4)(b) provides a constitutional right of appeal upon certification. Procedural rules must therefore be interpreted in a manner that facilitates rather than obstructs constitutional rights.
p. 3Facilitative interpretation of procedural rules
These authorities demonstrate that where the explanation for delay is credible and the issues transcend private interests, the Court leans toward sustaining the appellate chain rather than terminating it prematurely.
p. 2Approach to extension for certification applications
Time is extended to enable the applicant file and serve the application for certification to appeal to the Supreme Court within fourteen (14) days from the date hereof.
p. 3Final orders - extension granted
There shall be no order as to costs.
p. 3Final orders - costs

Issues in the judgment

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material

Internal inconsistency: while reciting the balance of prejudice the judgment refers to the applicant being aggrieved by a judgment of the ELC and desiring to appeal against it out of time, whereas the background describes a judgment of the Court of Appeal delivered on 2nd May 2025 and the motion concerns certification to the Supreme Court, not an ELC appeal.

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, "Mogere v Telkom Kenya Limited (Civil Application E474 of 2025) [2026] KECA 381 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 1st August 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/381/eng@2026-02-27

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