REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MACHAKOS MISCELLANEOUS APPLICATION NO. E036 OF 2026 EVANS NYAKUNDI MOMANYI........................................ APPLICANT VERSUS CONSOLIDATED HUMAN RESOURCE SOLUTIONS LIMITED................ RESPONDENT RULING The applicant filed an application dated 4 August 2026 under Rule 12 of the Employment and Labour Relations Court (Procedure) Rules, seeking leave to file the appeal out of time against the judgment delivered on 30 June 2026 in Mavoko MCELRC No. E247 of 2025. The applicant’s affidavit supports the application and is on the grounds that the trial court delivered judgment on 30 June 2026. Dissatisfied with the judgment, the applicant sought to file an appeal but was 4 days late. The delay is excusable and is explained by the fact that he could not afford the legal fees to instruct an advocate immediately, and when he could, he had already lost 4 days within which to file the appeal; hence this application. Under Rule 12 of the Court Rules, a party has 30 days within which to file an appeal, but the applicant faced circumstances beyond his control and could not file the appeal in time. The draft Memorandum of Appeal is annexed; once allowed, with a time extension, the appeal will be filed immediately and heard on the merits. The respondent filed Grounds of Opposition in response to the application. The respondent opposes the grant of the orders sought and argues that this is an abuse of the court process. Under the Court Rules, a party has 30 days to file an appeal from a trial court judgment. The application did ELRC MACHAKOS RULING MISC. E036 OF 2026 1
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not comply. Rule 12 of the Court Rules is invoked, but Rule 18 applies, which addresses extensions of time to file an appeal. The respondent thus submitted that there is no evidence to support the applicant’s assertions that he is impecunious and, therefore, could not file his appeal in time. The alleged lack of legal fees did not stop the applicant from filing his Memorandum of Appeal in time and then seek more time to file the Record of Appeal out of time. No material evidence was submitted before the court to support the applicant's case. Determination The applicant is seeking leave to file his appeal out of time. It is admitted that the subject judgment sought to be challenged on appeal was delivered on 30 June 2026 in Mavoko CMELRC No. 247 of 2025. Under section 17 of the Employment and Labour Relations Court Act read together with Rule 12 of the Employment and Labour Relations Court (Procedure) Rules (ELRC Rules), a party has 30 days within which to file an appeal. In this case, the applicant filed the instant application on 4 August 2026 on the basis that he was impecunious and lacked legal fees to instruct counsel to file the appeal. He is therefore seeking leave for the court to extend time to file his appeal and has attached the draft Memorandum of Appeal. The time tabulation under the ELRC Rules is similar to time tabulations under Order 50 of the Civil Procedure Rules. In calculating time, weekends and public holidays are excluded, including the court recess. A proper calculation of the 30 days from 30 June, when the trial court delivered judgment, shows that it lapses on 25 September 2026. Even if the court recess were removed, the 30 days would have lapsed on 12 August 2026. ELRC MACHAKOS RULING MISC. E036 OF 2026 2
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Filing the instant application on 4 August 2026 was based on the mistaken belief that the calendar month applied when tabulating time. Order 50 of the Civil Procedure Rules is meant to cure such calculations and tabulations of court time. Given the mistake, which the court finds excusable in the circumstances, and the applicant's proactive filing of these proceedings, time has since lapsed. The applicant will not be penalised. The applicant's pursuit of justice and his right to be heard on appeal are justified. However, these proceedings would have been avoided had the applicant, with legal representation, addressed the provisions of the ELRC Rules, the Civil Procedure Act, and the Rules thereto. Costs are due to the respondent. Accordingly, the application dated 4 August 2026 analysed; the applicant has 14 days within which to file his Appeal, including the Record of Appeal, as required under Rule 12 of the ELRC Rules. As these proceedings were unnecessary, the applicant shall pay the respondent's costs, assessed at Ksh. 5,000. Delivered in open court this 8th day of October 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Kemboi …………………………………………… and ………………………………….. ……… ELRC MACHAKOS RULING MISC. E036 OF 2026 3
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