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Court of AppealDismissedCivil Appeal (Application) E433 of 2022· [2022] KECA 1228 (KLR)

Silvanos Chadimba Angaluki v Waruhiu Kamau Gitoka t/a Sakam Engineering Contractor

Court of Appeal
4 November 2022
900 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed an extension-of-time application because the applicant never filed a notice of appeal, which is a mandatory jurisdictional requirement.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi by Laibuta, JA, on a Notice of Motion dated July 7, 2022 under Rule 4 of the Court of Appeal Rules, in which the applicant sought extension of time to appeal out of time from the judgment of the Employment and Labour Relations Court (Rutto, J.) delivered on April 28, 2022 in ELRC Cause No. 1670 of 2017, together with leave to file the record of appeal within 60 days and costs to abide the appeal. The court noted that no notice of appeal had ever been filed or served as required by Rule 77. Applying the Supreme Court's decision in University of Eldoret v Sitienei, it held that filing a notice of appeal signifies the intention to appeal, and that in the absence of such a notice the applicant had not expressed any intention to appeal. Relying on Apungu Arthur Kibira (citing Salat), the court characterised the notice of appeal as a jurisdictional pre-requisite, holding that an application for leave to file a record of appeal does not excuse compliance with Rule 77. It further held that the defect was not a mere technicality curable under Article 159(2)(d) of the Constitution, citing electoral jurisprudence to the effect that Article 159(2)(d) is not a panacea for all procedural ills, and that the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act does not confer jurisdiction. The Motion was dismissed in its entirety for want of jurisdiction, with no express costs order. The decision binds subordinate courts and the ELRC on the point that a Rule 4 application cannot be entertained where no notice of appeal exists on record.

Key legal issues

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01

Whether a Rule 4 application can be entertained without a notice of appeal on record

Holding

It cannot; the notice of appeal is a jurisdictional pre-requisite and its absence ousts the Court's jurisdiction to grant extension of time.

Reasoning

Relying on the Supreme Court's decision in University of Eldoret v Sitienei, the court held that filing a notice of appeal signifies the intention to appeal, and without one the applicant has not expressed any intention to appeal. An application for leave to file a record of appeal does not excuse compliance with Rule 77. Since no notice existed, nothing invoked the Court's jurisdiction under Rule 4.

p. 1
02

Whether Article 159(2)(d) cures the absence of a notice of appeal

Holding

No; Article 159(2)(d) is not a panacea for all procedural ills and cannot cure the jurisdictional defect.

Reasoning

The court, mindful of Article 48's guarantee of access to justice and the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act, held that the notice requirement is jurisdictional, not a mere technicality. Authorities including Salat and City Chemist confirm that Article 159(2)(d) does not override jurisdictional pre-requisites.

p. 2

Legal principles established

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  • A notice of appeal is a jurisdictional pre-requisite; without one on record the Court of Appeal has no jurisdiction to entertain a Rule 4 application for extension of time.
  • The absence of a notice of appeal is not a mere technicality curable under Article 159(2)(d) of the Constitution.

Court orders

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  1. 1.The applicant's Notice of Motion dated July 7, 2022 dismissed for want of jurisdiction

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 77
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 159(2)(d)
  • Appellate Jurisdiction Act (Cap. 9)Sections 3A and 3B

Cases cited (8)

  • University of Eldoret and another vs. Hosea Sitienei and three others
    [2020] eKLR

    Filing a notice of appeal signifies the intention to appeal and is not premised on any condition.

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

    A notice of appeal is a primary document and jurisdictional pre-requisite, as cited in Apungu Arthur Kibira.

  • Apungu Arthur Kibira vs. Independent Electoral and Boundaries Commission and 2 others
    [2018] eKLR

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

  • Jaldesa Tuke Dabelo vs. IEBC & Another
    [2015] eKLR

    Article 159(2)(d) is not a panacea for all procedural ills.

  • Raila Odinga and 5 Others vs. IEBC & 3 Others
    [2013] eKLR

    Article 159(2)(d) is not a panacea for all procedural ills.

  • Lemanken Arata vs. Harum Meita Mei Lempaka & 2 others
    [2014] eKLR

    Article 159(2)(d) is not a panacea for all procedural ills.

  • Patricia Cherotich Sawe vs. IEBC & 4 Others
    [2015] eKLR

    Article 159(2)(d) is not a panacea for all procedural ills.

  • City Chemist (NBI) Mohamed Kasabuli suing for and on behalf of the Estate of Halima Wamukoya Kasabuli vs. Orient Commercial Bank Limited
    Civil Appeal No. Nai 302 of 2008 (UR No. 199 of 2008) (Unreported)

    Sections 3A and 3B of the Appellate Jurisdiction Act confer powers to dispense justice with greater latitude.

On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
ELRC Cause No. 1670 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules; Appellate Jurisdiction Act (Cap. 9)

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, "Silvanos Chadimba Angaluki v Waruhiu Kamau Gitoka t/a Sakam Engineering Contractor", Case Analysis (2022). Civil Appeal (Application) E433 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1228/eng@2022-11-04

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