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Court of AppealStruck Out· [2026] KECA 1335 (KLR)

Director of Public Prosecutions & another v Nyang’au & 5 others; Dr (Interested Party) (Civil Application E148 of 2026) [2026] KECA 1335 (KLR)

Court of Appeal of Kenya
10 July 2026
KLK. I. Laibuta
807 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal struck out a request to extend appeal time because the applicants never filed a valid notice of appeal.

What this practically means

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Executive summary

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This was a single-judge application of the Court of Appeal at Nairobi under rule 4 of the Court of Appeal Rules seeking extension of time to lodge an appeal from a High Court judgment (Mugambi, J., Petition No. E370 of 2022, delivered 18th July 2025). The applicants, represented by the Office of the Director of Public Prosecutions, filed a notice of motion supported by an affidavit of Henry Nyabuto Achochi, deposing that a notice of appeal had been filed on 31st July 2025 via CTS, that certified proceedings had been requested and received, that the appeal was arguable, and that the delay was not inordinate. None of the respondents or interested parties responded despite service. The court (Laibuta, JA) held that the rule 4 discretion, though unfettered, can only be exercised where the intended appellant has first lodged a notice of appeal under rule 77(1). Examining the record, the court found only an undated, unsigned draft notice annexed to the affidavit, non-compliant with rule 77(6); the notice said to have been dated 30th July 2025 and lodged in September 2025 was not on the record. Applying Supreme Court authority in University of Eldoret v Sitienei and the Court of Appeal's decision in Apungu Arthur Kibira, the court held the applicants had not expressed an intention to appeal and had not invoked the court's jurisdiction. The motion was struck out with no orders as to costs.

Key legal issues

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01

Jurisdictional prerequisite of a notice of appeal before rule 4 extension of time

Holding

The discretion under rule 4 is exercisable only where a notice of appeal compliant with rule 77(1) has been lodged; the applicants had only an undated, unsigned, unlodged draft, so the motion was incompetent and was struck out.

Reasoning

Rule 4 gives the court an unfettered discretion to extend time, but that discretion can only be invoked where the intended appellant has first lodged a notice of appeal under rule 77(1). The record showed an undated draft notice annexed to the affidavit, unsigned and non-compliant with rule 77(6), and the notice said to have been dated 30th July 2025 and lodged on 19th September 2025 was not before the court. Relying on Supreme Court authority, the court held the applicants had not expressed an intention to appeal, making the motion incompetent.

p. 2

Legal principles established

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  • A notice of appeal lodged under rule 77(1) is a jurisdictional prerequisite to the exercise of the rule 4 extension-of-time discretion; the motion fails where no proper notice of appeal is on record

Court orders

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  1. 1.The applicants' Notice of Motion dated 28th January 2026 was struck out with no orders as to costs

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 77(1)
  • Court of Appeal Rulesrule 77(6)

Cases cited (3)

  • 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
High Court of Kenya at Nairobi
Petition No. E370 of 2022
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (2010, now 2022) - extension of time

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, "Director of Public Prosecutions & another v Nyang’au & 5 others; Dr (Interested Party) (Civil Application E148 of 2026) [2026] KECA 1335 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1335/eng@2026-07-10

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