Livoi v Sunpar Pharmaceuticals Ltd (Civil Application E569 of 2025) [2026] KECA 146 (KLR) (30 January 2026) (Ruling)

Livoi v Sunpar Pharmaceuticals Ltd (Civil Application E569 of 2025) [2026] KECA 146 (KLR) (30 January 2026) (Ruling) Neutral citation: [2026] KECA 146 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E569 of 2025 J Mohammed, JA January 30, 2026 Between Clifford Otwere Livoi Applicant and Sunpar Pharmaceuticals Ltd Respondent (Being an application for leave to file the record of appeal out of time from the judgment of the Employment and Labour Relations Court (Mathews Nduma, J.) dated 15th May 2025 at Nairobi in Nairobi ELRC Cause No. 173 OF 2021) Ruling Background 1.Clifford Otwere Livoi (the applicant) has moved this Court by way of a Notice of Motion dated 30th July 2025 expressed to be brought under Rules 5, 44 and 88 of the Court of Appeal Rules, 2022, seeking inter alia extension of time to file and serve a record of appeal out of time.Sunpar Pharmaceuticals Ltd is the respondent herein. 2.The application is supported by the grounds on the face of the motion and by a supporting affidavit sworn by the applicant. The applicant depones that he applied for certified copies of the proceedings and decree within time but the same were not supplied promptly. He further avers that a Certificate of Delay has since been issued and that no prejudice will be suffered by the respondent if the orders sought are granted. 3.Despite service of the hearing notice, the Respondent did not file any replying affidavit or written submissions. Submissions 4.The applicant who was acting in person filed written submissions dated 3rd November 2025 reiterating the grounds of the application. It was his submission that the delay of seven (7) days is not inordinate and is explained by the Certificate of Delay. 5.The applicant further submitted that the grant of the instant application will not prejudice the respondent in any way. Further, that he has weighty grounds of appeal and it will be an exercise in futility to proceed without being granted extension of time to file the record of appeal. Further, that he has an arguable appeal with high chances of success Determination 6.I have considered the notice of motion, the grounds thereof, the supporting affidavit, the applicant’s submissions and the law. Theprinciples guiding the exercise of discretion under Rule 4 are settled, as set out in Fakir Mohamed v Joseph Mugambi & 2 Others [2005] eKLR in the following terms:“The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path… As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possible) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance-are all relevant but not exhaustive factor.” 7.The Certificate of Delay dated 23rd July 2025 indicates that it was ready for collection on 23rd July 2025. The instant application was filed on 30th July 2025. The applicant contends that he has an arguable appeal on the ground inter alia whether the Employment and Labour Relations Court (ELRC) erred by failing to take into account the applicant’s evidence that he was coerced to resign from employment before his termination. Without going into the merits of the intended appeal as this will be determined by the full bench which will be seized of the appeal, I am satisfied that the intended appeal is arguable. See Muchugi Kiragu v James Muchugi Kiragu & another Civil Application No. NAI. 356 of 1996. 8.On the degree of prejudice to the respondent, I am called upon to balance the competing interests of the parties, that is, the injustice to the applicant in denying him an extension, against the prejudice to the respondent in granting an extension. The applicant is aggrieved by the impugned judgment and is desirous of appealing against the said judgment out of time. See: Richard Nchapi Leiyagu vs IEBC & 2 Others, Civil Appeal No. 18 of 2013. 9.The upshot is that I find merit in the application. In the circumstances, the Notice of Motion dated 30th July 2025 is allowed. The applicant shall file and serve the record of appeal within fourteen (14) days from the date of this ruling. Costs of this application to abide by the outcome of the intended appeal. **DATED AND DELIVERED AT NAIROBI THIS 30****TH** **DAY OF JANUARY, 2026****JAMILA MOHAMMED** ………………**.…….………****JUDGE OF APPEAL****I certify that this is a true copy of the original** Signed __**DEPUTY REGISTRAR**__