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Court of AppealStruck OutNotice of Motion dated 29th October 2025 (Civil Application, Court of Appeal)

Mbugua & 2 others v Waema & 2 others (Civil Appeal (Application) E096 of 2025) [2026] KECA 1093 (KLR)

Court of Appeal of Kenya
12 June 2026
AMA. K. MurgorKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
1,665 words in judgment
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The bottom line

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The Court of Appeal struck out a stay application because the applicants filed their notice of appeal over five months late without permission.

What this practically means

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Executive summary

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The Applicants moved the Court of Appeal at Mombasa under Rule 5(2)(b) of the Court of Appeal Rules, 2022 seeking a stay of execution of a judgment delivered on 30th April 2025 in Mombasa Employment and Labour Relations Court Petition No. 8 of 2020. That judgment declared the dissolution of the Mombasa Branch of the Kenya Long Distance Truck Drivers & Allied Workers Union unprocedural and void, found constitutional violations by the Applicants, awarded Kshs. 2,000,000 in damages payable personally by the first, second and third Respondents, and directed an audit of the Union's accounts. The Applicants argued the intended appeal was arguable and that execution would render it nugatory, and offered land as security. The Respondents opposed, contending that no valid Notice of Appeal had been filed and that the appeal was not arguable. The Court found that the Notice of Appeal was due by 14th May 2025 under Rule 77 but was only filed on 29th October 2025, a delay of approximately 168 days, with no leave to file out of time. Since jurisdiction under Rule 5(2)(b) depends on a valid Notice of Appeal lodged in accordance with Rule 77, the Court held it had no jurisdiction to entertain the application and downed its tools, applying Safaricom v Ocean View Beach Hotel, University of Eldoret v Sitienei, Equity Bank v West Link Mbo and Owners of Motor Vessel Lillian S v Caltex Oil. The Notice of Motion was struck out with costs to the Respondents. The Court did not reach the merits of arguability or nugatory-ness, and the underlying judgment was not disturbed.

Questions the Court framed

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

  1. 1.Whether the Court has jurisdiction to hear an application under Rule 5(2)(b) where no valid Notice of Appeal was filed within the prescribed period and no leave to file out of time was obtained

Key legal issues

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01

Whether a Rule 5(2)(b) application can be maintained where the Notice of Appeal was filed approximately 168 days out of time without leave

Holding

The Court had no jurisdiction; the application was struck out.

Reasoning

Rule 5(2)(b) empowers the Court to order a stay only where a notice of appeal has been lodged in accordance with Rule 77. Judgment was delivered on 30th April 2025, so the Notice was due by 14th May 2025, yet it was filed on 29th October 2025, a delay of about five and a half months. No leave to file out of time was granted. The Court therefore lacked jurisdiction and, citing the Lillian S principle, downed its tools.

p. 4

Legal principles established

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  • Jurisdiction of the Court of Appeal under Rule 5(2)(b) is predicated on the lodgement of a valid Notice of Appeal in accordance with Rule 77; without one the Court must decline to exercise jurisdiction.
  • A Notice of Appeal filed after the expiry of the fourteen-day period in Rule 77 is not a valid Notice of Appeal, and in the absence of leave to file out of time the Court has no jurisdiction to entertain a Rule 5(2)(b) application.

Court orders

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  1. 1.The Notice of Motion dated 29th October 2025 is struck out
  2. 2.Costs of the application to the Respondents

The bench

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

AM
majority
KL
majority
GN
majority
On appeal from
Employment and Labour Relations Court at Mombasa
Petition No. 8 of 2020
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022, conditional on a valid Notice of Appeal lodged under Rule 77

Relief refused

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Stay of execution of the judgment of the ELRC delivered on 30th April 2025 pending the intended appeal

No valid Notice of Appeal was filed within 14 days of judgment and no leave to file out of time was obtained, so the Court lacked jurisdiction under Rule 5(2)(b)

p. 4

Costs

The Notice of Motion dated 29th October 2025 is struck out with costs to the Respondents.

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.

In sum, the Notice of Motion dated 29th October 2025 is hereby struck out with costs to the Respondents.
p. 4Final orders
It is trite law that, to invoke the jurisdiction of this Court under Rule 5 (2) (b) of the Court of Appeal Rules, 2022, an applicant requires to have filed a valid Notice of Appeal.
p. 3Jurisdiction under Rule 5(2)(b)
and for this reason, we must down our tools.
p. 4Lack of 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, "Mbugua & 2 others v Waema & 2 others (Civil Appeal (Application) E096 of 2025) [2026] KECA 1093 (KLR)", Case Analysis (2026). Notice of Motion dated 29th October 2025 (Civil Application, Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1093/eng@2026-06-12

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