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Court of AppealOtherCivil Application E428 of 2022· [2022] KECA 1405 (KLR)

Anne Kimemia t/a Jenne Enterprises Limited v Hon. Rigathi Gachagua & Assets Recovery Agency; Rafiki Microfinance Bank Limited (Interested Party)

Court of Appeal
16 December 2022
AMA.K. Murgor
1,045 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to hear an extension request because the applicant never filed a notice of appeal, which is mandatory.

What this practically means

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Executive summary

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By a notice of motion dated July 12, 2022 under section 7 of the Appellate Jurisdiction Act and rule 4 of the Court of Appeal Rules, 2022, Anne Kimemia t/a Jenne Enterprises Limited sought extension of time to file and serve a notice and record of appeal, and a stay of judgment scheduled for July 28, 2022 in High Court ACEC Civil Suit No. E020 of 2020 (E. Maina, J, order of June 16, 2022), in an intended appeal against the Assets Recovery Agency, Hon. Rigathi Gachagua and Rafiki Microfinance Bank Limited as interested party. The applicant attributed the delay to illness, indecision on whether to appeal, and the registry's delay in supplying certified proceedings. Murgor, JA reviewed the rule 4 factors as settled in Leo Sila Mutiso, but on examining the pleadings and annexures found no filed notice of appeal on the record. Relying on Supreme Court authority that a notice of appeal is a primary document and jurisdictional prerequisite, the court held it had no jurisdiction to determine the motion or grant any orders, observing that without jurisdiction a court must down its tools and step away. The application was therefore not determined on its merits; no orders as to costs were made. The ruling binds subordinate courts and parties on the point that rule 4 relief is unavailable absent a filed notice of appeal.

Key legal issues

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01

Whether the Court of Appeal has jurisdiction over an extension-of-time application absent a filed notice of appeal

Holding

It does not; the application was dismissed for want of jurisdiction

Reasoning

Rule 4 applications presuppose an appeal. Rules 77, 79 and 84 require a notice of appeal within 14 days, service within 7 days, and filing of the appeal within 60 days. On scrutiny of the pleadings and annexures, no filed notice of appeal could be found, so there was no foundation for invoking the court's jurisdiction or computing time.

p. 2
02

The effect of absence of jurisdiction on the orders sought

Holding

A court without jurisdiction cannot grant the orders sought and must decline jurisdiction

Reasoning

Relying on the settled principle that jurisdiction is everything, the court held that where there is no jurisdiction it is devoid of a foundation to grant the orders sought, and must down its tools and step away.

p. 2

Legal principles established

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  • A notice of appeal is a jurisdictional prerequisite to the court's jurisdiction, whether or not the appeal requires leave
  • Without jurisdiction a court cannot grant any orders and must down its tools

Court orders

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  1. 1.The court held it had no jurisdiction to determine the applicant's notice of motion dated July 12, 2022 or to grant any of the orders sought
  2. 2.No orders as to costs

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 7
  • Court of Appeal Rules, 2022rule 4
  • Court of Appeal Rules, 2022rule 77
  • Court of Appeal Rules, 2022rule 79
  • Court of Appeal Rules, 2022rule 84

Cases cited (4)

  • Leo Sila Mutiso v Rose Hellen Wangari Mwangi
    Civil Application No Nai 251 of 1997

    Factors for extension of time: length and reason for delay, chances of success, prejudice to respondent

  • University of Eldoret & another v Hosea Sitienei and 3 others
    [2020] eKLR

    Filing of a notice of appeal signifies intention to appeal and is not conditional

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

    Notice of appeal as a primary document and jurisdictional prerequisite

  • Apungu Arthur Kibira v Independent Electoral and Boundaries Commission & 2 others
    [2018] eKLR

    Emphasis that a notice of appeal is a jurisdictional pre-requisite

On appeal from
High Court of Kenya, Anti-Corruption and Economic Crimes Division, Milimani
High Court ACEC Civil Suit No. E020 of 2020
Jurisdiction invoked
Section 7 of the Appellate Jurisdiction Act and rule 4 of the Court of Appeal Rules, 2022 (application); jurisdiction declined for want of a filed notice of appeal

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, "Anne Kimemia t/a Jenne Enterprises Limited v Hon. Rigathi Gachagua & Assets Recovery Agency; Rafiki Microfinance Bank Limited (Interested Party)", Case Analysis (2022). Civil Application E428 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1405/eng@2022-12-16

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