By Bob Waswani
KISUMU, July 3, 2025 — The Court of Appeal at Kisumu, on June 13, 2025, granted the Honourable Attorney General leave to appeal out of time against a March 14, 2024, ruling by the Employment and Labour Relations Court (ELRC) at Bungoma. Justice Asike-Makhandia allowed the application, filed on November 26, 2024, permitting the Attorney General to challenge the ELRC’s decision in ELRC Cause No. 6 of 2020, which awarded Douglas Wawire Mulekano Ksh 5 million for unlawful dismissal from the Kenya Defence Forces (KDF), plus pension benefits, costs, and interest.
The ELRC, presided over by Justice Keli, found Mulekano’s 2019 dismissal unlawful, citing violations of fair administrative action under Article 47 of the Constitution and Section 74 of the Employment Act. The court noted Mulekano, a 15-year KDF driver, faced unsubstantiated charges without a fair hearing. The Ksh 5 million award compensated for lost earnings and distress, with pension processing ordered under KDF regulations.
The Attorney General filed a Notice of Appeal on March 18, 2024, and collected proceedings on July 12, 2024. However, Special State Counsel Kiptum Chemas fell ill on July 17, 2024, taking two weeks off, followed by privileged leave until September 9, 2024. The case was reassigned to Mr. Tuitoek, who mistakenly believed the appeal record was filed. The error was discovered during a routine office review, leading to the record’s filing on November 26, 2024.
Mulekano, through Mr. Omagwa Angima, opposed the application, arguing the eight-month delay showed a lack of diligence. He contested the claim of Chemas’s illness, noting its timing, and argued the appeal lacked merit, prolonging his suffering post-dismissal. The Attorney General, via Tuitoek, cited Rule 4 of the Court of Appeal Rules and cases like Leo Sila Mutiso v. Rose Hellen Wangare Mwangi (1999), asserting the delay was unintentional and the appeal arguable.Justice Makhandia, applying Philip Keipto Chemwolo v. Augustine Kubende (1986), held that counsel’s errors should not penalize the litigant, stating, “Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on merit”.
He found the delay explained, the appeal grounds non-frivolous, and prejudice to Mulekano remediable by costs, noting, “This will be momentarily or temporary set-back… remedied by an award of costs”. The application was granted, with costs to Mulekano.