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Court of AppealDismissedCivil Application E091 of 2021· [2022] KECA 968 (KLR)

Githinji v Kigotho & another

Court of Appeal
26 August 2022
KLK. I. Laibuta
1,063 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to extend time to appeal because the applicant never filed the required notice of appeal — a step you cannot skip or fix later.

What this practically means

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Executive summary

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The applicant moved the Court of Appeal under Rule 4 of the Court of Appeal Rules seeking extension of time to file her notice of appeal, memorandum of appeal and record of appeal out of time, following a judgment of the Environment and Land Court at Nyeri delivered on 2 November 2016 in ELC Case No. 448 of 2014. She explained the delay on the basis that the judgment was delivered in her absence, that her former advocates never notified her of the judgment date or subsequent execution-related applications, and that mistake of counsel should not be visited on a litigant. The respondents opposed, asserting she was aware of the proceedings and that the intended appeal was hopeless. Laibuta, JA did not reach the merits of the delay or its explanation. The Court observed that Rule 4's discretion, though unfettered, may only be exercised where the Court has jurisdiction, and that the applicant had never lodged the notice of appeal mandated by Rule 77(1) and (2). Relying on Phoenix of EA Assurance v Thiga, Owners of the Motor Vessel 'Lillian S' v Caltex Oil, and the Supreme Court's decision in Salat v IEBC, the Court held that a notice of appeal is a jurisdictional pre-requisite, that a suit filed devoid of jurisdiction is dead on arrival and cannot be remedied, and that the absence of a notice of appeal deprives an intended appeal of its foundation. The Court accordingly downed its tools and declined to hear and determine the Motion. No costs order was pronounced.

Key legal issues

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01

Whether extension of time can be granted where no notice of appeal has been lodged

Holding

No. Rule 4 discretion may only be exercised where the Court has jurisdiction, and without a notice of appeal under Rule 77(1) and (2) there is no jurisdiction.

Reasoning

Rule 4 confers a wide discretion to extend time, but that discretion presupposes jurisdiction. The applicant had never lodged the notice of appeal required by Rule 77(1) and (2). Following Phoenix of EA Assurance and Owners of the Motor Vessel 'Lillian S', a suit filed devoid of jurisdiction is dead on arrival, and the Court must down its tools.

p. 2
02

Status of the notice of appeal as a jurisdictional prerequisite

Holding

The notice of appeal is a primary document to be filed outright and is a jurisdictional prerequisite, per the Supreme Court in Salat v IEBC.

Reasoning

The Court adopted the Supreme Court's holding in Salat that a notice of appeal must be filed outright whether or not leave is required, as a jurisdictional prerequisite. Since no notice of appeal existed here, the intended appeal had no foundation, and the Court could not confer jurisdiction on itself.

p. 2

Legal principles established

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  • The Court has no jurisdiction to entertain an application for extension of time where the intended appellant has not lodged a notice of appeal as mandated by Rule 77(1) and (2) of the Court of Appeal Rules.
  • The absence of a notice of appeal deprives an intended appeal of the foundation on which all proceedings would be anchored.

Court orders

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  1. 1.The application is dismissed for want of jurisdiction, the Court declining to hear and determine the applicant's Motion

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 77(1) and (2)

Cases cited (3)

  • Phoenix of EA Assurance Company Limited vs. S. M. Thiga T/A Newspaper Service
    [2019] eKLR

    A suit filed devoid of jurisdiction is dead on arrival; a court cannot confer jurisdiction on itself.

  • Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd.
    [1989] eKLR

    Jurisdiction is everything; a court must down its tools the moment it holds it is without jurisdiction.

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR

    A notice of appeal is a primary document to be filed outright and is a jurisdictional pre-requisite.

On appeal from
Environment and Land Court of Kenya at Nyeri
ELC Case No. 448 of 2014
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules; jurisdictional enquiry founded on the absence of a notice of appeal under Rule 77(1) and (2)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Githinji v Kigotho & another", Case Analysis (2022). Civil Application E091 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/968/eng@2022-08-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.