The Court of Appeal has cleared a challenge to recruitment at the National Social Security Fund (NSSF) to proceed after allowing a petitioner to file his appeal outside the prescribed timelines.
Justice Johnson Okello ruled that Peter Chege Ebson had provided sufficient grounds to be allowed to serve his notice of appeal late and file the full appeal record, giving him seven days and 30 days respectively to complete the process.
The dispute centres on the recruitment of staff at the State corporation, which Mr Ebson challenged in a public interest case, arguing that the advertisements and hiring process for vacant positions were unconstitutional and illegal.
His case raises questions about how public institutions fill vacancies and whether recruitment processes meet the standards expected of government agencies.
The Milimani Law Courts in Nairobi.
Photo credit: File | Nation Media Group
Mr Ebson had filed a constitutional petition at the Employment and Labour Relations Court in Nairobi. The matter was consolidated with another petition, E002 of 2024, and was determined by Justice Byram Ongaya on February 21, 2025, in Petition E006 of 2024.
Dissatisfied with the outcome, he sought to challenge the decision at the Court of Appeal. However, his former lawyers failed to serve the notice of appeal on the other parties within the required period, prompting him to seek the court's permission to proceed outside the deadline.
In his application dated May 23, 2025, Mr Ebson said his former lawyers had filed the notice of appeal on March 4, 2025, within the required time but failed to serve it on the affected parties within seven days.
He argued that the failure was not his fault, saying he had instructed his lawyers to serve the notice but they did not act on his instructions.
He further told the court that he made several attempts to contact the advocates but received no response. He eventually instructed a new law firm, which took over the matter and moved to prepare the appeal documents.
The applicant also cited difficulties with the Judiciary's electronic filing platform, saying a technical hitch between May 1 and 4, 2025, prevented his lawyers from uploading documents.
He maintained that the delay was not deliberate and that the intended appeal raised important issues concerning recruitment in a public institution. He also argued that allowing the appeal would not prejudice the other parties because the individuals whose recruitment was being challenged were already in office.
But the NSSF Board of Trustees opposed the application, saying Mr Ebson had not given a convincing explanation for failing to comply with the court timelines.
In a response sworn by Managing Trustee David Koross, the fund argued that extending time was not an automatic right and that the applicant had to demonstrate why he deserved the court's discretion.
"No official communication"
The board questioned why Mr Ebson had not provided an affidavit from his former lawyers explaining why they failed to serve the notice of appeal. It also said he had not produced official correspondence or communication from the Judiciary confirming that the electronic filing system had failed during the period in question.
The fund further argued that there was no evidence showing that the applicant had followed up the matter diligently or reported the alleged technical problems to the Judiciary's information technology department.
The Attorney-General and the Cabinet Secretary for Labour and Social Protection also opposed the application. The Public Service Commission and the other interested parties, including individuals named in the case, similarly urged the court to reject it.
They argued that blaming former lawyers was not enough without evidence showing what had gone wrong and what the applicant had done to ensure his case was handled within the required time.
In considering the dispute, Justice Okello said the court had to examine the length of the delay, the reasons given, the chances of the intended appeal succeeding and whether allowing it would unfairly affect the other parties.
Justice Okello found that Mr Ebson had filed his notice of appeal within the prescribed period but failed to serve it within seven days. The judge accepted that the failure had been attributed to his former advocates and noted that the applicant had eventually changed lawyers and taken steps to pursue the appeal.
“Considering the fact that the applicant moved with speed to prepare the record of appeal and further filed for leave to serve the notice of appeal on May 23, 2025, I’m persuaded that the applicant was vigilant and mistakes of the former counsel should not be visited on him,” the judge said.
The judge also considered the claim that the Judiciary's electronic filing platform had experienced technical problems. He noted that the applicant had attached material showing difficulties accessing the system, which he found explained the delay in filing the appeal record.
On the substance of the intended appeal, Justice Okello said the dispute concerned recruitment in a public institution and raised issues that deserved consideration by the appellate court.
“I’m persuaded that the appeal is arguable. An arguable point is not necessarily one that must succeed, but merely one that is deserving of consideration by the Court,” he said.
The judge further observed that the interested parties were already in office and that allowing the appeal to proceed would not cause them prejudice.
He acknowledged the importance of complying with court deadlines, noting that delays in the administration of justice affect the timely resolution of disputes. However, he concluded that the circumstances of the application justified granting the orders sought.
The court allowed Mr Ebson's application dated May 23, 2025, extending the time for him to serve the notice of appeal on the respondents and all affected parties.
He must serve the notice, dated March 4, 2025, within seven days of the November 6, 2026, ruling. He was also given 30 days from the date of the ruling to file and serve the full record of appeal.
