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Court of AppealStruck OutNotice of Motion dated 8th October 2025 (Malindi)· [2026] KECA 781 (KLR)

Dofu & 3 others v Ngome & 7 others (Civil Application E038 of 2025) [2026] KECA 781 (KLR)

Court of Appeal of Kenya
24 April 2026
1,061 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an extension-of-time application because the applicants never actually filed a notice of appeal, only a draft attached to an affidavit.

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 Malindi (Laibuta, JA) on a Notice of Motion dated 8th October 2025 in which the applicants sought extension of time under rule 4 of the Court of Appeal Rules, 2022 to lodge a Notice of Appeal and record of appeal against a ruling of the Environment and Land Court at Malindi (Evans Makori, J.) dated 15th May 2025 in ELC Petition No. E025 of 2025, which struck out their petition. The applicants asserted that they filed a review application which was struck out on 4th June 2025, whereupon they were allegedly granted leave to appeal and served a Notice of Appeal. The 1st respondent opposed, citing inordinate delay and the absence of proof of leave, and arguing that a party cannot apply for review and then appeal. The Court held that rule 4 discretion can only be exercised where the Court's jurisdiction has been invoked by lodging and serving a notice of appeal under rule 77(1). On the record, only a draft Notice of Appeal dated 4th June 2025 annexed to a supporting affidavit existed; it had never been lodged. Adopting Supreme Court authority, the Court reiterated that a notice of appeal is a primary, jurisdictional document signifying the intention to appeal. Concluding that the Motion was incompetent, the Court struck it out with costs to the 1st respondent. The decision below was not disturbed, as the applicants never reached the merits of an intended appeal.

Key legal issues

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01

Whether rule 4 discretion can be invoked without a lodged notice of appeal

Holding

It cannot; lodging and serving a notice of appeal under rule 77(1) is a jurisdictional prerequisite, and a draft notice merely annexed to an affidavit does not suffice.

Reasoning

Rule 4 confers an unfettered discretion, but the discretion is exercisable only where the Court's jurisdiction has been properly invoked. The applicants annexed only a draft Notice of Appeal dated 4th June 2025 as an affidavit annexure; it was never lodged under rule 77(1). Relying on Supreme Court authority, the Court held that a notice of appeal is a primary document signifying the intention to appeal and a jurisdictional pre-requisite, so in its absence the applicants had not formally expressed any intention to appeal.

p. 3
02

Respondent's argument that a party cannot seek review and then appeal

Holding

The Court did not determine this argument, as the application was struck out on the jurisdictional ground of the absent notice of appeal.

Reasoning

The 1st respondent argued, citing Akhura v Simon Kibet Rugut, that a litigant cannot apply for review and, when review is disallowed, proceed to appeal. The Court recorded this submission but resolved the Motion on the narrower basis that no notice of appeal had been lodged, rendering the Motion incompetent. The review-versus-appeal point therefore remains, in this ruling, a submission rather than a holding.

p. 2

Legal principles established

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  • A notice of appeal lodged and served under rule 77(1) is a jurisdictional prerequisite to the exercise of the Court's discretionary power under rule 4 to extend time.
  • Filing a notice of appeal is the manner in which an appellant formally signifies the intention to appeal; without it, no intention to appeal is on record.

Court orders

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  1. 1.The applicants' Notice of Motion dated 8th October 2025 is struck out
  2. 2.Costs of the application awarded to the 1st respondent

Authorities

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Legislation

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

Cases cited (8)

  • Mutiso v Mwangi
    [1999] 2 EA 231
  • Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR
  • Salat v IEBC & 7 Others
    [2014] KESC 12 (KLR)
  • Fakir Mohammed v Joseph Mugambi & 2 Others
    [2005] eKLR
  • Akhura v Simon Kibet Rugut
    [2025] KEHC 3133 (KLR)
  • University of Eldoret and another v Hosea Sitienei and three others
    [2020] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others
    [2014] eKLR
  • Apungu Arthur Kibira v Independent Electoral and Boundaries Commission and 2 others
    [2018] eKLR
On appeal from
Environment and Land Court, Malindi
ELC Petition No. E025 of 2025
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (extension of time jurisdiction)

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, "Dofu & 3 others v Ngome & 7 others (Civil Application E038 of 2025) [2026] KECA 781 (KLR)", Case Analysis (2026). Notice of Motion dated 8th October 2025 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/781/eng@2026-04-24

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