1. Through his application dated 30th April 2025, the Applicant seeks leave to appeal out of time against the Judgment of the Honourable Gathogo Sogomo [ PM] delivered on 14th March, 2025 in CMELRC NO. E 799 OF 2023-Vincent Kaleli Musyoki v- Gateway Marine Services Ltd. The application is anchored on the grounds set out on the face of the application, and the supporting affidavit filed contemporaneously with the application.
2. The application is based on the prime grounds that;
a) a) By his Judgment dated 14th March 2025, the learned trial Magistrate dismissed his suit on the ground that his employment contract was not terminated at the initiative of the Respondent, but came to an end by effluxion of time.
b) That at the time the Judgment was being delivered, he was up country attending a relative’s funeral.
c) On 28th April 2025, on return from a trip to Rwanda, he visited his Advocate’s offices on 29th April 2025 and gave them instructions to file an appeal against the entirety of the lower court Judgment. At that point, the time for filing an appeal against the decision had already lapsed.
d) The delay of 13 days is not inordinate and is excusable.
e) The application is filed timeously, considering that in between the date of the Judgment and the date of filing this application, there were two public holidays, Easter holiday and IDD ILTRY.
3. The Respondent opposes the application by way of grounds of opposition dated 30th April 2025. The grounds are;
a) The Applicant has not demonstrated that the delay was not inordinate and is justifiable. The delay between 14th March 2025 and 2nd May 2025 has not been explained.
b) The excuse that the Applicant was out of the country working in Burundi is not supported by any documentary proof, such as passport stamps, work records, or correspondence.
c) Granting leave to appeal out of time would unjustly prejudice the Respondent, who has a legitimate expectation that litigation has to come to an end.
d) The intended appeal has not been demonstrated to have any reasonable prospects of success.
Analysis and Determination
4. It is now well-established that the Courts possess discretionary authority to grant applications for leave to file appeals out of time. Nonetheless, this discretion must be exercised judiciously, avoiding capricious, whimsical, or sympathetic considerations. Judicial precedents have delineated the criteria that a court must evaluate when determining whether to grant such an application. See Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 others [2014] eKLR.
5. Undoubtedly, the delay in question amounts to a period of 13 days. The classification of a delay as inordinate depends on the specific circumstances of each case. I have thoroughly analysed the factual assertions presented by the Applicant regarding the delay, and in my view, they are reasonable and adequate. The application for extension of time was timeously filed.
6. Grounds of opposition in civil litigation are inherently inadequate to rebut factual issues raised in an adversary’s affidavit.
7. In the upshot, I find the Applicant’s application merited it is hereby allowed. The Applicant is granted leave of 14 days to file an appeal against the Judgment hereinabove mentioned. Each party is to bear its own costs of this application.
Read Signed and Delivered this 5th Day of February 2026.