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Court of AppealStruck OutNot stated in the judgment

Khaemba v Teachers Service Commission & 2 others (Civil Appeal 186 of 2019) [2025] KECA 203 (KLR)

Court of Appeal
7 February 2025
HOHannah OkwenguHOH. A. OmondiJNJoel Ngugi
1,338 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal because the notice of appeal was filed a year late without leave, ending the case on procedure.

What this practically means

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Executive summary

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This Court of Appeal judgment in Kisumu concerns an appeal against a ruling of the Employment and Labour Relations Court (Nduma, J.) delivered on 20 September 2018, striking out the appellant Patrick Wanyonyi Khaemba's Petition No. 30 of 2017 for duplicity and abuse of court process, the same facts and issues being pending in Kisumu ELRC Petition No. 23 of 2015. The appellant filed a notice of appeal on 22 August 2019, almost one year after the ruling, although Rule 75 of the Court of Appeal Rules 2010 requires lodgement within fourteen days. No leave or extension of time under Rule 4 was sought or exhibited. The respondents argued the appeal was incompetent; the appellant addressed only the merits. The Court held that although extension of time remains possible under Rule 4 even after filing, at the hearing stage, where extension has neither been sought nor obtained, the Court cannot ignore the validity of the notice when considering its jurisdiction. It relied on the Supreme Court's decision in Nicholas Kiptoo Arap Korir Salat v IEBC, which followed the Californian authority of Silverbrand v County of Los Angeles, that timely filing of a notice of appeal is a jurisdictional prerequisite. It distinguished National Industrial Credit Bank v Wasike as a Rule 5(2)(b) application. Article 159(2)(d), read with Sections 3A and 3B of the Appellate Jurisdiction Act, could not save a party who deliberately failed to regularise the infraction. The Court struck out the appeal as incompetent and awarded costs to the respondent, without reaching the merits of the striking-out ruling. A single judgment of the whole bench was delivered on 7 February 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the notice of appeal filed almost one year after the ruling, without leave or extension of time, was valid and properly invoked the Court's jurisdiction
  2. 2.Whether the appeal could proceed notwithstanding the incompetent notice of appeal
  3. 3.Merits of the striking out of the petition for duplicity/abuse of process (not reached)

Key legal issues

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01

Validity of an out-of-time notice of appeal and its effect on the Court's appellate jurisdiction

Holding

A notice of appeal lodged outside the fourteen days prescribed by Rule 75, without leave or extension of time under Rule 4, is incompetent; the Court's jurisdiction is not properly invoked and the appeal must be struck out without reaching the merits.

Reasoning

Rule 75 requires lodgement within fourteen days of the decision. Extension of time is possible under Rule 4, even after filing, but here no leave or extension was sought or obtained. Following Supreme Court authority adopting the Californian position that timely filing is a jurisdictional prerequisite, the Court held it could not ignore the defect at the hearing stage. Article 159(2)(d) does not rescue a party who deliberately failed to regularise the infraction.

p. 3
02

Scope of Article 159(2)(d) and Sections 3A and 3B of the Appellate Jurisdiction Act

Holding

The overriding objective obliges the Court to apply the rules so as to facilitate just, expeditious and proportionate resolution of appeals, but does not excuse a deliberate failure to use available procedures.

Reasoning

The Court acknowledged the constitutional command to favour substantial justice over procedural technicality, read with Sections 3A and 3B of the Appellate Jurisdiction Act. However, it held that these provisions operate where a party has sought to make amends; a litigant who deliberately declines the lifeline of an extension application cannot invoke Article 159(2)(d) to cure the defect.

p. 3

Legal principles established

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  • A notice of appeal filed out of the fourteen-day period under Rule 75 without leave or extension of time is incompetent, and without a valid notice of appeal the Court of Appeal has no jurisdiction to hear the appeal.
  • At the point of hearing an appeal, where extension of time to file a notice of appeal has neither been sought nor obtained, the Court cannot ignore the validity of the notice in considering its jurisdiction.
  • Article 159(2)(d) cannot save a litigant who, having had the opportunity to regularise a procedural infraction, deliberately failed to do so.

Court orders

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  1. 1.The appeal is struck out
  2. 2.Costs awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HO
majority
HO
majority
JN
majority
On appeal from
Employment and Labour Relations Court
Petition No. 30 of 2017 (ruling by Nduma, J.)
Jurisdiction invoked
Appeals from the Employment and Labour Relations Court to the Court of Appeal under the Court of Appeal Rules 2010 (Rule 75 notice of appeal regime); jurisdiction contested on validity of notice of appeal

Relief refused

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Hearing of the appeal on its merits

The notice of appeal was filed out of time without leave; no valid notice of appeal, so the Court's jurisdiction was not properly invoked

p. 3

Costs

Costs awarded to the respondent ("We, therefore, strike out the appeal and award costs to the respondent.")

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We find that the appellant’s notice of appeal upon which this appeal is anchored is incompetent having been filed out of time without leave of the Court.
p. 3Incompetence of out-of-time notice of appeal
However, at the point of hearing of an appeal, if such extension of time has neither been sought nor obtained, the Court cannot ignore the issue of the validity of the notice in considering its jurisdiction to determine the appeal.
p. 3Jurisdictional scrutiny of notice validity at hearing stage
As noted by the Court of Appeal, the filing of a timely notice of appeal is a jurisdictional prerequisite.
p. 3Timely filing of notice of appeal as jurisdictional requirement (quoted with approval from Silverbrand)
We, therefore, strike out the appeal and award costs to the respondent.
p. 3Final orders / disposition

Issues in the judgment

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minor

The ruling under appeal internally contradicts itself on the year of the earlier Kisumu petition, calling it both Petition No. 23 of 2013 and Petition No. 23 of 2015.

minor

The judgment does not state the case number of the present appeal or a neutral citation, and the respondents' assertion that an extension application was dismissed is unsupported by anything on the record.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Khaemba v Teachers Service Commission & 2 others (Civil Appeal 186 of 2019) [2025] KECA 203 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/203/eng@2025-02-07

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