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ELRCDismissedELRC JR No. E001 of 2023 (Notice of Motion dated 27th August 2024)

Republic v Public Service Commission & another; Kirinyaga County Public Service Board (Exparte Applicant) (Judicial Review E003 of 2023) [2025] KEELRC 70 (KLR)

Employment and Labour Relations Court
23 January 2025
2,550 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The court refused to forgive a one-day late appeal filing because the county government had no proper proof its e-filing system was down.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nyeri (Onesmus N Makau J) determined a Notice of Motion dated 27th August 2024 by the County Government of Trans Nzoia seeking enlargement of time to file a Notice of Appeal against a judgment of 9th August 2024, by which the court adopted a Public Service Commission decision on a labour dispute. The applicant claimed its Notice of Appeal, dated 20th August 2024, could only be lodged on 24th August 2024 - one day after the 14-day limitation expired - because of downtime in the Judiciary CTS e-filing system, and sought that the orders apply mutatis mutandis to ELRC JR No. E001 of 2023. The Respondent union opposed, contending among other things that the application was an abuse of process, that the court was functus officio, that the applicant was in breach of section 88 of the PSC Act and in contempt, and that the supporting affidavit was inadmissible hearsay and the CTS screenshots inadmissible for want of a section 106B certificate. The court found its jurisdiction to extend time was donated by Section 7 of the Appellate Jurisdiction Act, not Rule 18 of the ELRC Procedure Rules. Applying the Salat and Pan African Paper Mills principles, it held the one-day delay inexcusable: the applicant had waited until the last moment, produced no evidence from the Judiciary ICT department, never showed it contacted ICT officers, and its screenshot was unauthenticated electronic evidence of unstated date and time. The prejudice to the respondent's out-of-work members weighed against extension. The application was dismissed with costs. The court declined to rule on the arguability of the intended appeal, leaving that to the appellate court.

Questions the Court framed

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

  1. 1.Whether the application meets the legal threshold for enlargement of time for filing a Notice of Appeal

Key legal issues

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01

Whether the court should enlarge time for filing a Notice of Appeal filed one day late

Holding

The application was dismissed; the delay was inexcusable and the explanation unsupported by admissible evidence.

Reasoning

Applying the Salat and Pan African Paper Mills principles, the court weighed the length and reason for the delay, the burden of explanation, and prejudice. The delay was only one day, but the applicant had waited until the last moment, the alleged CTS downtime was not evidenced by the Judiciary ICT department, no proof of contact with ICT officers was given, and the screenshot annexure RW1 was unauthenticated under section 106B of the Evidence Act and lacked date/time details. The Respondent's members would be prejudiced by further delay while the applicant's delay was attributable to its own negligence.

p. 6
02

Whether the court's jurisdiction to extend time is donated by Rule 18 of the ELRC Procedure Rules

Holding

No; the jurisdiction flows from Section 7 of the Appellate Jurisdiction Act, Rule 18 dealing only with appeals to the ELRC itself.

Reasoning

The court held that because decisions of the ELRC are appealable to the Court of Appeal under the Appellate Jurisdiction Act and its Rules, Section 7 governs extensions of time for notices of appeal to the Court of Appeal. It relied on Kenya Airports Authority v Timothy Nduvi Mutungi where Githinji JA confirmed the High Court's power. The applicant's reliance on Rule 18 of the ELRC Procedure Rules 2024 was therefore misplaced, as that rule concerns appeals to the ELRC, not to the Court of Appeal.

p. 4
03

Whether the intended appeal was arguable

Holding

The court declined to determine arguability, leaving it to the appellate court.

Reasoning

Both parties submitted on whether the intended appeal was arguable, but the judge took the view that this question is best left to the appellate court since the extension application had already failed on the inexcusable delay. This did not affect the outcome, which turned on the explanation for the delay and the burden and standard of proof regarding the alleged CTS system failure.

p. 6

Legal principles established

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  • The High Court (and courts of equal status) may extend time for giving notice of intention to appeal under Section 7 of the Appellate Jurisdiction Act even where the prescribed period has expired
  • An applicant for extension of time bears the burden of explaining the delay to the satisfaction of the court, and electronic evidence must be authenticated by a certificate under section 106B of the Evidence Act

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 27th August 2024 seeking enlargement of time to file a Notice of Appeal
  2. 2.Costs of the application awarded to the Respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act

Relief refused

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Enlargement of time for filing the Notice of Appeal and deeming the Notice of Appeal dated 20th August 2024 and lodged on 24th August 2024 as properly filed

The delay of one day was not excusably explained; the claimed CTS downtime was not supported by authentic admissible evidence and the applicant left filing to the last moment

p. 6

Extension of time to file and serve a fresh Notice of Appeal, with orders applying mutatis mutandis to ELRC JR No. E001 of 2023

Flowing from the same unexcused delay and inadmissible electronic evidence of system failure

Costs

The application dated 27th August 2024 was dismissed with costs (costs to the Respondent).

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.

Consequently, I decline to exercise my discretion to enlarge the time for filing Notice of Appeal and proceed to dismiss the application dated 27th August 2024 with costs.
p. 6Disposition - dismissal of extension of time application
It is clear that the applicant had all the time from 9th to 23rd August 2024 to lodge its Notice of Appeal. The notice of appeal on record is dated 20th August 2024, meaning that the applicant waited until the last moment to exercise the right of appeal.
p. 5Delay and negligence of applicant
In summary the annexure RW1 is neither suficient nor authentic evidence to discharge the burden of proof that the applicant was prevented from filing the Notice of Appeal on time because of continuous problem with the judiciary CTS.
Burden of proof and admissibility of electronic evidence
It follows that submission by the applicant that the Court’s jurisdiction to extend time for filing of appeals is donated by Rule 18 of the ELRC Procedure Rules is incorrect. The said rule deals with appeal to the Court and not those going to the Court of Appeal.
p. 4Source of jurisdiction to extend time

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, "Republic v Public Service Commission & another; Kirinyaga County Public Service Board (Exparte Applicant) (Judicial Review E003 of 2023) [2025] KEELRC 70 (KLR)", Case Analysis (2025). ELRC JR No. E001 of 2023 (Notice of Motion dated 27th August 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/70/eng@2025-01-23

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