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Court of AppealAllowed

University of Nairobi v Mayaka (Civil Application E678 of 2024) [2026] KECA 1592 (KLR)

Court of Appeal of Kenya
31 July 2026
1,483 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal allowed the University of Nairobi to appeal late, ruling a 17-day delay with a genuine explanation was acceptable.

What this practically means

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Executive summary

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This is a ruling by M'Inoti, JA, sitting as a single Judge of the Court of Appeal at Nairobi, on a Notice of Motion dated 3rd December 2024 in which the University of Nairobi sought extension of time to appeal against the judgment of the Employment and Labour Relations Court (Mwaure, J) dated 25th October 2024, or alternatively that its notice of appeal lodged on 25th November 2024 be deemed duly filed. The underlying dispute concerned Livingstone Mayaka, a retired employee, who obtained awards in the Principal Magistrate's Court for underpaid gratuity under a Collective Bargaining Agreement and refund for uniforms totalling Kshs 2,707,435.09. The ELRC upheld the award but reduced it by Kshs 251,027, and awarded interest at 14% per annum and costs in both courts. Rule 77 of the Court of Appeal Rules required the notice of appeal within 14 days; it was filed 17 days late. Applying Nicholas Kiptoo Korir Arap Salat v. IEBC and Leo Sila Mutiso v. Rose Hellen Wangari Mwangi, the judge held the delay neither inordinate nor unexplained: the ELRC judge pronounced only the final orders, and the certified judgment sought on 28th October 2024 was availed on 12th November 2024, after which advocates were instructed on 17th November. The intended appeal - on whether the uniform refund claim was time-barred, whether the special damage was strictly proved, and whether full costs were proper after partial success - was found not frivolous on a prima facie view, a single judge being unable to make definitive findings on merits. The respondent, though duly served and directed to reply, took no part, and no prejudice was found. The application was allowed, the notice of appeal deemed lodged on time, with costs of the application to abide the appeal.

Questions the Court framed

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

  1. 1.Whether the 17-day delay in lodging the notice of appeal beyond the period prescribed by rule 77 of the Court of Appeal Rules was inordinate and sufficiently explained
  2. 2.Whether the intended appeal is arguable and not frivolous (chances of success, considered on a prima facie basis only)
  3. 3.Whether the respondent would suffer prejudice if time for filing the appeal were extended
  4. 4.Whether the notice of appeal filed out of time on 25th November 2024 should be deemed to have been lodged on time

Key legal issues

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01

Whether the 17-day delay in lodging the notice of appeal was inordinate and sufficiently explained under rule 4 of the Court of Appeal Rules

Holding

The delay was not inordinate and was sufficiently explained. The ELRC judge pronounced only the final orders, so the University needed the full judgment to decide whether to appeal; its uncontroverted account of seeking the certified copy and instructing advocates satisfied the court.

Reasoning

Rule 77 required the notice of appeal within 14 days of the 25th October 2024 judgment, but it was filed on 25th November 2024, late by 17 days, which the judge declined to characterise as inordinate. The explanation - that the ELRC judge read only the final orders, prompting a written request for a certified judgment on 28th October 2024, availed on 12th November 2024, with instructions to appeal issued on 17th November - was uncontroverted and accepted as a candid and sufficient explanation of the delay.

p. 3
02

Whether the intended appeal is arguable and not frivolous

Holding

On a prima facie assessment, confined as required by Athuman Nusura Juma, the intended appeal is not frivolous.

Reasoning

A single judge cannot make definitive findings on the merits; the chances-of-success factor is prefixed with the word 'possibly'. The draft memorandum of appeal raised whether the claim for refund for uniforms was time-barred under statute, whether the special damage was strictly proved as required in law, and whether the ELRC correctly awarded the respondent full costs in the trial and first appellate courts after partially allowing the appeal. These valid issues of law persuaded the judge that the intended appeal was not frivolous.

p. 3
03

Whether the respondent would suffer prejudice if time for filing the appeal were extended

Holding

No prejudice was established: the respondent did not respond to the application despite due service and court directions.

Reasoning

The respondent's advocates were served with the application on 3rd December 2024, and on 8th August 2025 the Court directed the filing of a replying affidavit within seven days and the filing and exchange of submissions, none of which was complied with. The application was therefore unopposed. In those circumstances the judge had no basis for finding that the respondent would suffer more prejudice than the applicant if time were extended.

p. 3
04

The principles governing the exercise of the rule 4 discretion to extend time

Holding

Rule 4 confers a wide and unfettered discretion to be exercised judiciously, guided by the length of and reason for the delay, the (possible) chances of success, and prejudice to the respondent; extension is an equitable remedy for a deserving party who lays a basis.

Reasoning

Relying on Nicholas Kiptoo Korir Arap Salat v. IEBC and Leo Sila Mutiso v. Rose Hellen Wangari Mwangi, with Fakir Mohamed and Imperial Bank cited in support, the court restated that extension of time is discretionary and equitable, that the applicant bears the burden of laying a basis, that each case turns on its own facts, and that at the single-judge stage the merits consideration is only prima facie, prefixed with the word 'possibly'.

p. 2

Legal principles established

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  • Rule 4 of the Court of Appeal Rules confers a wide and unfettered discretion to extend time, but like all judicial discretion it must be exercised judiciously and upon reason, not arbitrarily or as a matter of course.
  • Extension of time is an equitable remedy, not a right, available only to a deserving party who lays a basis to the satisfaction of the court.
  • In deciding whether to grant an extension of time, the court considers the length of the delay, the reason for the delay, (possibly) the chances of the appeal succeeding, and the degree of prejudice to the respondent.
  • A single judge of the Court of Appeal must not make definitive findings on whether an intended appeal has merits; the chances-of-success consideration is qualified as 'possibly' at that stage.

Court orders

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  1. 1.The application dated 3rd December 2024 is allowed
  2. 2.The applicant's notice of appeal dated 25th November 2024 is deemed to have been lodged on time
  3. 3.Costs of the application shall abide the outcome of 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 at Nairobi
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules - the discretionary jurisdiction of a single Judge of Appeal to extend time prescribed by the Rules (here, the 14-day period for lodging a notice of appeal under rule 77)

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.

Ultimately, I allow this application and deem the applicant’s notice of appeal dated 25th November 2024 to have been lodged on time. Costs of this application shall abide the outcome of the appeal. It is so ordered.
p. 4Disposition - extension of time granted and notice of appeal deemed lodged on time
I would not characterise a delay of 17 days as inordinate. More importantly, the applicant has candidly explained the delay as having arisen from a desire to first appreciate the reasoning in the judgment before deciding whether to lodge an appeal
p. 3Short delay explained by need to peruse full judgment where only final orders were read
This Court has been careful to ensure that whether the intended appeal has merits or not is not an issue determined with finality by a single judge. That is why in virtually all its decisions on the considerations upon which discretion to extend time is exercised, the Court has prefixed the consideration whether the intended appeal has chances of success with the word “possibly”.
p. 3Limits of a single judge's assessment of the intended appeal's chances
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
p. 3Nature of the remedy of extension of time
the matters which this Court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly, (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted
p. 3The four factors for extension of time applications

Issues in the judgment

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minor

The judgment gives contradictory dates for the lodging and service of the notice of appeal: one passage states 25th November 2025, while the rest of the judgment (including the computation of the 17-day delay and the final orders) states 25th November 2024.

minor

Recurring typographical errors in the official text ('sufier' for 'suffer', 'suficiently' for 'sufficiently', 'has not indicate' for 'has not indicated'), which should be borne in mind when running verbatim quote searches.

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, "University of Nairobi v Mayaka (Civil Application E678 of 2024) [2026] KECA 1592 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1592/eng@2026-07-31

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