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Court of AppealPartially AllowedNot stated in the judgment as reproduced

National Union of Water and Sewerage Employees (NUWASE) & 3 others v Nairobi City Water & Sewerage Company Ltd & 5 others (Civil Appeal (Application) 206 of 2020) [2025] KECA 1464 (KLR)

Court of Appeal of Kenya
31 July 2025
1,405 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out an appeal because the appellants missed filing deadlines and never served the notice of appeal.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (W. Karanja, Mumbi Ngugi and Joel Ngugi, JJ.A) delivered on 31st July 2025 on a notice of motion dated 9th October 2020 by the 5th respondent, Elijah Otieno Awach, seeking the striking out of the notice of appeal dated 2nd November 2019 and the record of appeal dated 18th May 2020, or alternatively that the appeal be deemed withdrawn. The application arose from an appeal against a judgment of the Environment and Land Court delivered on 22nd November 2019. Two defects were raised: first, that the notice of appeal was never served on the applicant as required by rule 77(1) of the Court of Appeal Rules, 2022, and bore no seal of the Deputy Registrar; second, that the record of appeal was filed approximately 178 days after the notice, far outside the sixty-day period in rule 84, with no certificate of delay, no application for extension of time and no letter bespeaking proceedings served. The respondents/appellants filed no affidavit in reply and no submissions on the application. The court, citing Law Society of Kenya v Centre for Human Rights and Democracy, Salat v IEBC, Daniel Nkirimpa Monirei v Sayialel Ole Koilel (which it held was on all fours) and Ramji Davji Vekaria v Joseph Oyula, held that the timelines for filing appeals are mandatory, that non-service of the notice of appeal destroys the court's jurisdiction, and that out-of-time lodgment is a substantive defect not curable under article 159(2)(d) or sections 3A and 3B of the Appellate Jurisdiction Act. The application was allowed with costs to the applicant; the notice of appeal and record of appeal were struck out, rendering the appeal incompetent.

Questions the Court framed

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

  1. 1.Whether the failure to serve the notice of appeal within the time prescribed by rule 77(1) of the Court of Appeal Rules, 2022 renders the appeal incompetent
  2. 2.Whether the failure to seal the notice of appeal with the stamp of the court is a fatal defect
  3. 3.Whether the record of appeal, filed 178 days after the notice of appeal without leave, extension of time or a certificate of delay, is properly on record
  4. 4.Whether the cumulative procedural defects go to the jurisdiction of the court such that the notice of appeal and record of appeal should be struck out

Key legal issues

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01

Effect of non-service of the notice of appeal

Holding

Failure to serve the notice of appeal within the stipulated time is fatal and renders the appeal incompetent ab initio, leaving the court without jurisdiction to entertain the appeal.

Reasoning

Rule 77(1) of the Court of Appeal Rules, 2022 requires service of the notice of appeal on all persons directly affected within seven days of lodging. Service alerts the respondent that the matter is not concluded and enables preparation for the appeal. Non-service ambushes the respondent and occasions prejudice. Following Law Society of Kenya and Daniel Nkirimpa Monirei, the defect destroys the jurisdiction of the appellate court; there is no valid notice of appeal to clothe the court with jurisdiction.

p. 2
02

Filing the record of appeal out of time without leave

Holding

A record of appeal filed beyond the sixty-day period in rule 84 without leave, extension of time or a certificate of delay is not properly on record and must be struck out.

Reasoning

The record of appeal was filed at least 178 days after the notice of appeal, far beyond the sixty days prescribed by rule 84. No certificate of delay or application for extension of time was placed before the court, and the appellants filed no affidavit in reply or submissions on the application. Following Daniel Nkirimpa Monirei and Ramji Davji Vekaria, out-of-time lodgment is a substantive defect not curable under article 159(2)(d) or sections 3A and 3B, and the record is not properly on record.

p. 4
03

Cumulative effect of the procedural defects

Holding

The combined defects of non-service of the notice of appeal and out-of-time filing of the record of appeal go to the root of the court's jurisdiction, making the appeal incompetent and liable to be struck out.

Reasoning

The court drew a direct parallel with Daniel Nkirimpa Monirei, which it described as being on all fours. In that case both defects led to striking out the notice of appeal and the record of appeal. Here, the same two defects existed, the appellals filed no reply contesting the facts, and no validation of the out-of-bounds steps was sought. The cumulative effect is incompetence of the appeal as a whole.

Legal principles established

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  • The timelines for filing appeals in the Court of Appeal are mandatory and not merely directory; strict compliance with the rules on lodging appeals is required.
  • Failure to serve a notice of appeal within the time prescribed by rule 77(1) of the Court of Appeal Rules goes to the jurisdiction of the appellate court and renders the appeal incompetent ab initio.
  • Lodging an appeal out of time is not a procedural technicality curable under the overriding objective; it is a substantive issue going to the core of an affected party's right to reasonable time to prepare for an appeal.

Court orders

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  1. 1.The application dated 9th October, 2020 is allowed
  2. 2.The notice of appeal dated 2nd November, 2019 filed by the respondents/appellants is struck out
  3. 3.The record of appeal dated 18th May, 2020 is struck out
  4. 4.The applicant shall have the costs of the application

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court
Not stated in the judgment as reproduced
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules, 2022 (rules 77(1) and 84) and sections 3A and 3B of the Appellate Jurisdiction Act (referred to in the judgment as the 'Appellant Jurisdiction Act'); no specific constitutional or statutory provision invoked as the source of the court's jurisdiction.

Relief refused

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Deeming the appeal to have been withdrawn (alternative prayer)

The court granted the primary remedy of striking out rather than deeming the appeal withdrawn; the alternative prayer was not pursued in the final orders.

Costs

The applicant shall have the costs of this application.

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.

The timelines for filing appeals in this court are mandatory and not merely directory.
p. 3Mandatory nature of appellate timelines
Accordingly, we allow the application dated 9th October, 2020. The notice of appeal and the record of appeal filed by the respondent are hereby struck out. The applicant shall have the costs of this application.
p. 4Final orders - striking out notice of appeal and record of appeal
From the above analysis, it is clear that there is no valid notice of appeal on record, to clothe us with the requisite jurisdiction to entertain the appeal herein.
p. 3Non-service of notice of appeal destroys appellate jurisdiction
There must be strict compliance with the rules of the Court regarding the steps taken in lodging an appeal.
p. 3Strict compliance with appellate rules (quoting Salat v IEBC)
lodging an appeal out of time is not a procedural technicality which can be cured by the court invoking the overriding principle.
p. 4Overriding objective cannot cure out-of-time lodgment

Issues in the judgment

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minor

The judgment describes the notice of appeal as 'dated and filed on 2nd November, 2019 following the judgment of the Environment and Land Court delivered on 22nd November, 2019', an internal chronological inconsistency (the notice predates the judgment it purports to appeal against); the appellants themselves called the date 'improbable'.

minor

The statute is misnamed in the judgment as the 'Appellant Jurisdiction Act' rather than the Appellate Jurisdiction Act.

minor

The applicant's supporting affidavit is described as 'dated 9th October, 2020' in the application but 'deposed on 9th May, 2020' in the body of the judgment - an internal date inconsistency.

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, "National Union of Water and Sewerage Employees (NUWASE) & 3 others v Nairobi City Water & Sewerage Company Ltd & 5 others (Civil Appeal (Application) 206 of 2020) [2025] KECA 1464 (KLR)", Case Analysis (2025). Not stated in the judgment as reproduced. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1464/eng@2025-07-31

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