Dofu & 3 others v Ngome & 7 others (Civil Application E038 of 2025) [2026] KECA 781 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether rule 4 discretion can be invoked without a lodged notice of appeal
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.
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.
Respondent's argument that a party cannot seek review and then appeal
The Court did not determine this argument, as the application was struck out on the jurisdictional ground of the absent notice of appeal.
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.
Legal principles established
#- 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
#- 1.The applicants' Notice of Motion dated 8th October 2025 is struck out
- 2.Costs of the application awarded to the 1st respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.