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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNot stated in the judgment· [2026] KECA 822 (KLR)

Solomon Githae Irungu v Nairobi City Water & Sewerage Company Limited

Court of Appeal
30 April 2026
1,809 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a company that never filed its appeal lost the right to keep it alive, clearing the way for the worker's judgment to stand.

What this practically means

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Executive summary

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This was an application by Solomon Githae Irungu (the applicant, acting in person) under Rule 84 of the Court of Appeal Rules, 2010 (now Rule 86 of the 2022 Rules) seeking to strike out, or in the alternative deem withdrawn, a notice of appeal dated 1st July 2016 lodged by Nairobi City Water & Sewerage Co. Ltd against an ELRC judgment (Mathews N. Nduma, J.) finding the applicant's summary dismissal wrongful and unfair and awarding relief under sections 43, 45 and 49 of the Employment Act, 2007. The respondent did not respond to the application. The Court (Jamila Mohammed and A. O. Muchelule, JJA) held that a pure Rule 86 strike-out application was barred by the proviso requiring such applications within thirty days of service of the notice of appeal, the present application having been lodged years after service. However, the Court invoked Rule 85, under which a party who fails to institute an appeal within the appointed time is deemed to have withdrawn the notice of appeal. Following Gamma Villa Limited v Kenya Ports Authority, Cloy & 2 others v Kiniaru, Igweta & Another v Kathambi and Karurie v Kamau, the Court confirmed that Rule 85 may be invoked notwithstanding the Rule 86 proviso. Applying the chronology, the Court found no record of appeal was ever filed despite a certificate of delay issued on 1st August 2019, no extension of time was sought, and the delay extended over five years. The Court deemed the notice of appeal withdrawn and ordered the respondent to bear the costs of the application. The ruling was delivered under Rule 34(4) following the death of Judge Ochieng, JA before delivery.

Key legal issues

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01

Whether a notice of appeal should be deemed withdrawn under Rule 85 where no record of appeal was filed within the prescribed time

Holding

The respondent failed to institute the appeal within the time prescribed by the Rules and is deemed, by operation of Rule 85, to have withdrawn its notice of appeal dated 1st July 2016.

Reasoning

Rule 85 deems a notice of appeal withdrawn where the appeal is not instituted within the appointed time. Despite a certificate of delay issued on 1st August 2019, no record of appeal was filed and no extension of time was sought over a period exceeding five years. The respondent filed no replying affidavit or submissions. The delay was prolonged and unexplained, and leaving the notice on the record would excuse procedural delay and prejudice the judgment creditor, including by indefinitely sustaining stay orders founded on the intended appeal.

p. 4
02

Whether an out-of-time application under Rule 86 can be sustained, or whether the Court may instead act under Rule 85

Holding

The strike-out prayer under Rule 86 fails because of the thirty-day proviso, but the Court may still make an order under Rule 85, which addresses the deemed withdrawal of a notice of appeal.

Reasoning

The proviso to Rule 86 bars strike-out applications brought more than thirty days after service of the notice of appeal or record of appeal. However, Rule 85 operates independently: it addresses the legal consequence of failure to institute an appeal within time, and the Court may act on it on its own motion or on the application of a party. The two rules serve different purposes, and the thirty-day limitation in Rule 86 does not oust the Court's power under Rule 85.

p. 4

Legal principles established

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  • Where a party who has lodged a notice of appeal fails to institute the appeal within the appointed time, the party is deemed to have withdrawn the notice of appeal, and the Court may so order on its own motion or on the application of another party.
  • An application strictly grounded on Rule 86 to strike out a notice of appeal is constrained by the proviso requiring it to be brought within thirty days of service of the notice of appeal or record of appeal.
  • Rule 85 may be invoked notwithstanding the limitation proviso in Rule 86, because Rule 85 addresses the legal consequence of failure to institute the appeal within time.

Court orders

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  1. 1.The respondent's notice of appeal dated 1st July 2016 be and is hereby deemed to have been withdrawn
  2. 2.The respondent shall bear the costs of the application
On appeal from
Employment and Labour Relations Court
Not stated in the judgment
Jurisdiction invoked
Rule 85 and Rule 86 of the Court of Appeal Rules, 2022; ruling delivered under Rule 34(4)

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, "Solomon Githae Irungu v Nairobi City Water & Sewerage Company Limited", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/822/eng@2026-04-30

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