Paul Kipchumba Rotich & 4 Others v Teachers Service Commission & 4 Others

sought inter alia extension of time to lodge a notice of appeal Page 2 of 15

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and record of appeal out of time against the judgment and decree of the Employment and Labour Relations Court delivered at Nakuru on 29th August 2025 in E008 of 2024. Notably, by a ruling dated 3rd June 2026, this Court allowed the said application and issued the following orders: a) Leave be and is hereby granted to the applicants to file their notice of appeal and record of appeal out of time against the judgment and decree of Rika, J. issued on 29 th August 2025 in ELRC Petition No. E008 of 2024. b) The applicant’s notice of appeal uploaded in the Judiciary Case Tracking System (CTS) on 4th September 2025 shall be deemed as duly filed upon payment of the requisite filing fees. c) The applicants are hereby granted leave to file and serve their record of appeal within 30 days from the date of this ruling. d) The costs of this application shall be costs the appeal. 2. The applicants did not comply with the above orders. They have now approached this Court vide their application dated 24th September 2026 seeking orders that: (a) the time limited by the above order be extended; (b) alternatively, they be granted leave to file and serve their notice of appeal and record of appeal within such further period as this Court may deem just and expedient; (c) upon Page 3 of 15

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the grant of the foregoing orders, the applicants be at liberty to file and serve their notice of Page 4 of 15

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Appeal and Record of Appeal within the time prescribed by this Court; (d) the costs of this application abide the outcome of the intended appeal; and, (e) this Court be pleased to issue such further or other orders as may be necessary for the ends of justice. 3. The salient grounds urged in support of the application are: (a) neither the applicants nor their advocates on record received any notice informing them that the application had been listed before a single Judge for hearing; (b) consequently, the applicants and their advocates were unaware that the application had been determined and that the Court had granted them 30 days within which to file and serve the record of appeal; (b) the applicants remained under the bona fide belief that their application was still awaiting listing and determination; (c) the applicants only became aware of the ruling on or about 6th August 2026, well after the expiry of the 30 days granted by the Court; (d) upon becoming aware of the ruling, the applicants' advocates by a letter dated 7th August 2026, inter alia, requested to be furnished with a certified copy of the said ruling and the order ; (e) their inability to comply with the Page 5 of 15

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30 day period was therefore not occasioned by Page 6 of 15

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indolence, disregard of the Court's orders or deliberate default, but by the fact that they had not been notified of the delivery of the ruling or served with the same. Therefore, the circumstances described above constitute a reasonable explanation; (d) Rule 4 of the Court of Appeal Rules, 2022 expressly empowers this Court, on such terms as may be just, to extend time limited by the Rules or by any decision of the Court, whether before or after the doing of the act; and, (e) no prejudice will be suffered by the respondents incapable of compensation by way of costs. 4. The application is vehemently opposed. The 1 st and 5th respondents filed a replying affidavit dated 1 st October 2026. The salient averments are: (a) the applicants are seeking to review the decision of a single judge, therefore, they should be heard by a full bench; (b) the applicants have failed to disclose that on 3rd June 2026 the Court updated its CTS and informed the parties that the ruling had been delivered, and (c) the applicants have not demonstrated any valid reason for their delay, and, (d) allowing the application will prejudice the respondent. Page 7 of 15

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5. The 2nd respondent also opposed the application vide his replying affidavit dated 30th September 2026. The key highlights of the grounds of opposition can be grouped into four categories: (a) the applicants have not offered a satisfactory explanation for the delay, because: (i) the applicants failed to comply with the court’s ruling requiring them to file their record of appeal within 30 days; (ii) this application was filed 83 days after the court mandated deadline, and (iii) the supporting affidavit offers no satisfactory explanation for the delay. (b) the applicants were aware of the ruling: (i) this application was filed late without seeking further extension; (ii) the applicants claim that they discovered the ruling through an online search is unclear; (ii) there is inconsistent information regarding when counsel discovered the ruling; (iii) the applicants did not keep track of the court’s notification of the ruling through the case tracking system; (iv) the court’s directive and notification of the ruling were communicated via e-mail and online system. (c) Exercise of court’s discretion and merits of the application. In support of this assertion, the 2nd respondent asserted that: (i) an applicant seeking extra time must justify the request; (b) the Page 8 of 15

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delay indicates lack of genuine intention to prosecute the appeal; (c) the application is unmerited and should be dismissed. 6. The 4th respondent filed a replying affidavit dated 30 th September 2026 in opposition to the application. The key highlights include: (a) the applicants failed to comply with the previous court set deadline; (b) the court notified the parties that the application was to be determined based on written submissions, with no party appearance; (c) the parties were reminded to comply with the directions; (b) a party must demonstrate diligence in handling his case; (d) the court’s role is to ensure just, timely delivery of justice and procedural compliance to avoid unnecessary delays. 7. The 3rd respondent did not file any reply to the application or submissions. 8. In support of the application, the applicants’ counsel filed submissions dated 1st October 2026. Their salient arguments are; (a) this Court is guided by Rule 4 of the Court of Appeal Rules, 2022. The applicants cited Nichols Kiptoo Arap Korir Salat vs. Independent Electoral Page 9 of 15 and Boundaries

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Commission & 7 Others [2014] eKLR which articulated the Page 10 of 15

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guiding principles in applications under Rule 4. (b) previous rulings by this Court such as Mwangi vs. Njoroge & Another [2024] KECA 381 (KLR) acknowledge that a previous extension does not preclude further extensions under Rule 4 of this Court’s Rules. (b) the court considers the explanation for default and conduct after becoming aware and overall justice; (c) the court has discretion to extend timelines if justified, even after prior extensions; (d) the delay was due to non-notification of the ruling rather than negligence; (e) under Rule 38 (2) the Registrar is required to notify all the parties; (e) transmission of the notifications to the advocates was not proven; (f) refusal of the extension would violate the applicant’s constitutional right to appeal; (g) no prejudice will be caused to the respondents if the extension is granted and that justice necessitates it. 9. The 4th respondent filed submissions dated 4th October 2026. The key highlights are: (a) delay must be explained and relied on Independent Nicholas Arapo Korir Salat vs. and Boundaries Commission & 7 Others (supra); (b) the Page 11 of 15

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applicant’s delay was despite being given a 30 day extension. He relied on Kamuthi Farmers Cooperative Society Ltd vs. Page 12 of 15

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Nairobi City Council [2025] KESC 28 (KLR) to underscore the need for diligence and promptness in pursuing legal remedies; (c) seeking clarification by a letter does not constitute timely progress; (d) successive extensions are not automatic and depend on conduct; (e) non compliance of procedural timelines affects the integrity of justice; (f) finality of court orders take precedence over the applicants’ desire to appeal; (g) reliance on Mwangi vs. Njoroge & Another (Civil Application E387 of 2023) [2024] KECA 381 (KLR) is distinguishable. He submitted that while this Court's wide discretion to grant a further extension of time is recognized, it equally underscored that such discretion must be exercised on sound principles. He argued that this case is different because in the instant case, the applicant had already secured an extension but became demonstrably indolent. In any event, Mwangi vs. Njoroge doesn't establish an unconditional right to successive extensions irrespective of the applicant's conduct. Lastly, as was held in Kasyoki vs. Lwango [2025] KESC 65 (KLR), failure to explain the entire period of delay is fatal. Page 13 of 15

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10. Under Rule 4 of the Court of Appeal Rules, 2022, a single judge possesses wide and unfettered judicial discretion to extend timelines. However, where an applicant has already been granted an indulgence once under Rule 4 but fails to file their notice of appeal or record of appeal within that extended timeline, the Court of Appeal treats applications for a further extension with stringent scrutiny. This is because an application for extension of time is an invocation of the Court's discretion to forgive non- compliance with its rules. While any standard extension of time requires a reasonable explanation for the delay, a subsequent application demands a meticulous, day-by-day description of why the previous court-mandated deadline was missed. If the applicant treats the previous deadline with levity, offers a superficial explanation or fails to explain the lapse between the expiry of the first extension and the filing of the second application, extension of time will be refused. 11. Therefore, when a party applies for a subsequent extension of time, they must provide a meticulous explanation as to why they failed to comply with the precise timelines Page 14 of 15

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ordered by the Court in the first extension. Litigants cannot treat a Court Page 15 of 15

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order extending time as a mere suggestion. If the applicant treats the timeline granted by the single judge with levity or offers no plausible reason for violating the specific grace period, the further extension is denied. When dealing with a second chance, the threshold for what constitutes a "reasonable explanation" becomes significantly higher. (See Njuki & Another vs. Kahihu & Another [2022] KECA 961 (KLR)). If the failure to file the notice or record within the previously extended timeline is due to sheer indolence, oversight, or bureaucratic lethargy on the part of the advocate or the applicant, a further extension will be denied. 12. The reasons provided by the applicants are two-fold: (a) they were not aware that their application was placed before the single judge for hearing; (b) they did not receive communication from the court after the ruling was delivered. 13. Regarding the first reason, on record is a hearing notice dated 18th May 2026 addressed to info@tripleasheria.com, Jackie Akello <jackie@tripleasheria.com>. Evidently, this email is only addressed to one party. There is a glaring Page 16 of 15

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omission by the Court Registry. The other complaint raised by the applicant is Page 17 of 15

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that upon delivery by the single judge, the ruling was not dispatched to them. Again, on record is a copy of an e-mail by the Court dispatching the ruling in question to the parties. It is dated 3rd June 2026, and it was dispatched at 4.21pm. This e-mail is addressed to info@tripleasheria.com, Jackie Akello <jackie@tripleasheria.com>. Again, the applicants’ email is missing. By now, it is evident that there was a grave omission by this Court’s registry, which is, failure to serve all the parties. This omission is worrying and of great concern. This omission gives credence to the applicants’ two main grounds, which, is they were not aware the matter had been listed before a single judge for determination, and, the ruling was not communicated to them after its delivery. 14. It is an incontrovertible principle of law across common law jurisdictions that a litigant should not be allowed to suffer owing to a mistake of the Court. When a delay in filing an appeal is directly caused by a systemic failure or administrative delay of the court itself (such as the registry failing to prepare the decree, or failing to supply the Page 18 of 15

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certified copy of the ruling in a timely manner, or failing to serve a hearing notice as happened in this case), the litigant cannot Page 19 of 15

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be penalized. This protection is anchored upon two fundamentals, universally recognized equitable legal maxims, namely: (a) Actus curiae neminem gravabit: "An act of the court shall prejudice no man." The Court has a duty to ensure its own internal failures or administrative inefficiencies do not strip away a citizen's substantive legal rights. The principle of Actus Curiae Neminem Gravabit ensures no individual suffers due to court errors. Judicial errors are attributed to the court, not the parties involved, maintaining fairness in legal proceedings. (b) Lex non cogit ad impossibilia: "The law does not compel a man to do what he cannot possibly perform." A statutory rule cannot expect a litigant to append a copy of a ruling to an appeal if the Court itself has not yet made that ruling physically available. 15. In V. Nagarajan vs. SKS Ispat and Power Ltd. & Others [2022] 2 SCC 244, the Supreme Court of India clarified that while a litigant cannot sit back idly, the principle of actus curiae neminem gravabit stands strong. A person cannot be expected to perform an impossible act, and if an appeal cannot be effectively drafted or structured Page 20 of 15

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because an order is Page 21 of 15

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unavailable from the registry, the Court must protect the litigant. 16. Also, the Apex Court of India in Central Talkies Ltd. vs. Dwarka Prasad [1956] SCR 1 & Udayan Chinubhai v R.C. Bali [1977] 4 SCC 309 held that if a decree has not been framed or signed by the Court, the period of limitation does not begin to run out. The time taken by the Court to actually draw up and sign the decree is entirely deducted to ensure the party suffers no prejudice. 17. Notably, it is essential to distinguish between a courtcaused delay, omission or a mistake and a litigant-caused delay, omission or a mistake. In this case the omission/mistake is entirely attributed to the Court not the applicants. Therefore, the applicants cannot be allowed to suffer because of a mistake of the Court. 18. A long delay accompanied by a plausible, honest, and satisfactory explanation ceases to be "inordinate" or fatal to the application. Conversely, even a relatively short delay that is completely unexplained or met with nonchalance by the applicant will be treated Page 22 of 15 as inordinate and

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unconscionable. The definition of inordinate delay heavily relies on whether the Page 23 of 15

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lapse of time fundamentally compromises justice. Justice is a double-edged sword. It cuts both ways. Under Rule 4, the Court balances the applicant’s right to be heard against the degree of prejudice the respondent would suffer. 19. As mentioned earlier, a subsequent application for extension of time is subjected to a more stringent evaluation, which means, the Court will apply an exceptionally high level of judicial scrutiny and a stricter standard of review compared to a first-time request. When a litigant has already been granted a previous extension of time (or has already missed an initial deadline and a subsequent grace period), the Court's willingness to grant further leniency diminishes. The Court moves away from ordinary flexibility and demands absolute accountability. While an initial extension of time requires showing a reasonable or plausible explanation ("good cause"), a subsequent extraordinary, application and requires comprehensive an unassailable, explanation. The applicant cannot offer vague excuses. The Court will meticulously dissect the timeline, requiring the applicant to account for virtually every day that passed since the last Page 24 of 15

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extension expired. Page 25 of 15

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20. I have subjected the reasons offered by the applicants to the high scrutiny standard applied to subsequent applications for extension of time discussed above. I am satisfied that the application has surmounted the high threshold required in a later application for extension of time. Accordingly, the application dated 24th September 2026 is allowed. The applicants are granted a further extension of fourteen (14) days within which they should file and serve their notice of appeal. Thereafter, the applicants should file their record of appeal within twentyone (21) days. The costs of this application shall abide with the outcome of the appeal. Dated and delivered at Nakuru this 7th day of October, 2026. J. MATIVO .......................... . JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. DEPUTY REGISTRAR. Page 26 of 15

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