Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealStruck OutNotice of Motion dated 9th April 2026 (Court of Appeal)· [2026] KECA 1336 (KLR)

Muthusi (Suing as the Administrator of the Late Jackson Muthusi Mwano) v Aimi Ma Kilungu Ltd & another (Civil Application E184 of 2026) [2026] KECA 1336 (KLR)

Court of Appeal of Kenya
10 July 2026
KLK. I. Laibuta
835 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused to extend time to appeal because the applicant never actually filed a notice of appeal - only a draft.

What this practically means

#

Executive summary

#
This was a single-judge ruling of the Court of Appeal at Nairobi by Laibuta, JA, on a Notice of Motion dated 9th April 2026 in which the applicant, an administrator of a deceased estate, sought extension of time under rule 4 of the Court of Appeal Rules, 2022 to lodge a Notice of Appeal against the judgment of the Environment and Land Court at Makueni (Obaga, J) delivered on 12th February 2026 in ELC Appeal No. E006 of 2024, which had dismissed her appeal with costs. The 2nd respondent opposed, deposing that time for filing the Notice lapsed on 26th February 2026, that the Notice was filed only on 10th March 2026, and that the applicant's explanation was vague and insufficient. The 1st respondent took no part. The court held that although rule 4 confers an unfettered discretion, that discretion is exercisable only where the intended appellant has first lodged a notice of appeal under rule 77(1) - a jurisdictional prerequisite. The record disclosed only a draft Notice of Appeal annexed to the supporting affidavit, and a further notice that was likewise not lodged; neither satisfied rule 77(1). Relying on the Supreme Court's decision in University of Eldoret v Sitienei as adopted in Apungu Arthur Kibira v IEBC, the court held that filing a notice of appeal signifies the intention to appeal and is a jurisdictional pre-requisite, which the applicant had not met. The Motion was declared incompetent and struck out with costs to the 2nd respondent. The extension of time sought was therefore refused; the decision below was not disturbed on the merits.

Key legal issues

#
01

Whether the Court's rule 4 discretion can be exercised before a notice of appeal is lodged

Holding

The discretion under rule 4 is only exercisable where the intended appellant has first lodged a notice of appeal in obedience to rule 77(1); the applicant had not, so the application was incompetent and was struck out.

Reasoning

Rule 4 gives the Court an unfettered discretion to extend time, but that discretion is conditioned on the intended appellant successfully invoking the Court's jurisdiction. The record showed only a draft Notice of Appeal dated 7th April 2026 annexed as 'JN5' and described as a draft; a further notice dated 10th April 2026 was likewise not lodged. Neither met rule 77(1). Following University of Eldoret v Sitienei and Apungu Arthur Kibira v IEBC, the filing of a notice of appeal signifies the intention to appeal and is a jurisdictional pre-requisite, absent which the applicant had yet to express her intention to appeal.

p. 2

Legal principles established

#
  • A notice of appeal lodged under rule 77(1) is a jurisdictional prerequisite for invoking the Court's discretion under rule 4 to extend time; a draft or unfiled notice does not satisfy this requirement

Court orders

#
  1. 1.The applicant's Notice of Motion dated 9th April 2026 is struck out
  2. 2.Costs of the Motion to the 2nd respondent

Authorities

#

Legislation

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

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
Environment and Land Court at Makueni
ELC Appeal No. E006 of 2024
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Muthusi (Suing as the Administrator of the Late Jackson Muthusi Mwano) v Aimi Ma Kilungu Ltd & another (Civil Application E184 of 2026) [2026] KECA 1336 (KLR)", Case Analysis (2026). Notice of Motion dated 9th April 2026 (Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1336/eng@2026-07-10

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