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Court of AppealStruck OutNotice of Motion dated 9th April 2026 (Civil Application, Court of Appeal, Nairobi)· [2026] KECA 1377 (KLR)

Matheka v Kenya Airways Company Ltd & another (Civil Application E180 of 2026) [2026] KECA 1377 (KLR)

Court of Appeal of Kenya
10 July 2026
KLK. I. Laibuta
989 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an extension-of-time application because the appellant never actually filed a notice of appeal before asking for more time.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Laibuta, JA, sitting singly) delivered at Nairobi on 10th July 2026 on a Notice of Motion dated 9th April 2026 by John Bosco Matheka. The applicant sought extension of time under rule 4 of the Court of Appeal Rules to file and serve a notice, memorandum and record of appeal against the judgment of the Employment and Labour Relations Court at Nairobi (Ongaya, J.) of 17th December 2025 in Petition No. E156 of 2025, which had dismissed his petition, and further sought that the notice of appeal be deemed duly filed upon payment of fees. He attributed the delay to the Court's Christmas vacation and ongoing good-faith negotiations with the 1st respondent. The 2nd respondent, Kenya Airline Pilots' Association, opposed, contending the application was an afterthought and abuse of process. The Court held that its discretion under rule 4 is exercisable only where a notice of appeal has first been lodged under rule 77(1), a jurisdictional prerequisite. The record disclosed only a draft notice of appeal, which the applicant himself described as a draft, and his prayer to deem it filed confirmed this. Relying on University of Eldoret v Sitienei (SC) and Apungu Arthur Kibira v IEBC, the Court found that absent a properly filed notice of appeal the applicant had not expressed an intention to appeal. The motion was struck out with costs to the 2nd respondent.

Key legal issues

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01

Whether extension of time can be granted where no notice of appeal has been lodged

Holding

No. The lodging of a notice of appeal under rule 77(1) is a jurisdictional prerequisite to invoking rule 4 discretion; a draft notice of appeal does not suffice.

Reasoning

Rule 4 confers an unfettered discretion, but that discretion is exercisable only once the Court's jurisdiction has been properly invoked. The applicant's own prayer to deem the notice filed 'upon payment of requisite fees' confirmed that only a draft notice existed. Following University of Eldoret v Sitienei (SC) and Apungu Arthur Kibira v IEBC, a notice of appeal signifies the intention to appeal and must be filed outright, whether or not leave is required. Absent a properly filed notice, the applicant had not expressed an intention to appeal, and the motion was incompetent.

p. 3

Legal principles established

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  • A notice of appeal is a jurisdictional prerequisite to the exercise of the Court's discretion under rule 4; the Court's discretionary powers under rule 4 may only be exercised where a notice of appeal has first been lodged under rule 77(1).

Court orders

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

Authorities

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Legislation

  • Court of Appeal Rules, 2010 (now 2022)Rule 4
  • Court of Appeal Rules, 2010 (now 2022)Rule 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
Employment and Labour Relations Court at Nairobi
Petition No. E156 of 2025
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2010 (now 2022)

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, "Matheka v Kenya Airways Company Ltd & another (Civil Application E180 of 2026) [2026] KECA 1377 (KLR)", Case Analysis (2026). Notice of Motion dated 9th April 2026 (Civil Application, Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1377/eng@2026-07-10

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