Kisii County Assembly Service Board & 2 others v Nyaoga (Civil Appeal (Application) E015 of 2026) [2026] KECA 1429 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an entire appeal because the notice of appeal lacked the Deputy Registrar's mandatory endorsement and signature.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the impugned notice of appeal and record of appeal should be struck out for want of endorsement, signature and authentication by the Deputy Registrar as required by rule 77(6) of the Court of Appeal Rules
Key legal issues
#Whether the absence of the Deputy Registrar's endorsement, signature and authentication on a notice of appeal is a fatal defect
Yes - it is a mandatory requirement under rule 77(6) and its breach goes to the jurisdiction of the court; the notice and record of appeal founded on it are struck out.
Form D in the First Schedule to the Rules expressly provides for signature, endorsement and authentication by the Registrar. No other interpretation is possible; without endorsement the court cannot verify that the notice and record are authentic and duly filed, particularly under the current e-filing system. The defect is therefore fundamental and jurisdictional, not a curable irregularity, and the appeal has no valid foundation.
Whether article 159(2)(d) of the Constitution and the overriding objective can cure the defect
No - they cannot be invoked to circumvent express and mandatory provisions governing the institution and prosecution of appeals, citing Salat v IEBC.
The court adopted the Supreme Court's guidance in Nicholas Kiptoo Arap Korir Salat v IEBC that rules of procedure must be obeyed and mandatory non-compliance cannot be excused under article 159. Article 159 is not a panacea for omissions attributable to counsel, and defects going to the root of jurisdiction cannot be cured by constitutional provisions.
Legal principles established
#- Endorsement, authentication and signature of a notice of appeal by the Deputy Registrar under rule 77(6) of the Court of Appeal Rules is a mandatory requirement; non-compliance is a fundamental jurisdictional defect, not a mere irregularity.
- Article 159 of the Constitution and the overriding objective cannot be used to cure non-compliance with express and mandatory provisions governing the institution and prosecution of appeals.
- A notice of appeal that is not endorsed by the Registrar is invalid and incapable of sustaining an appeal.
Court orders
#- 1.Notice of appeal dated 17th November 2025 struck out
- 2.Record of appeal dated 19th January 2026 struck out
- 3.All consequential proceedings founded thereon struck out
- 4.Applicants granted costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- Jurisdiction invoked
- Rules 44 and 86 of the Court of Appeal Rules (inherent jurisdiction under sections 3A and 3B of the Appellate Jurisdiction Act urged by respondent)
Relief refused
#Respondent's plea to preserve the appeal under article 159(2)(d) and sections 3A and 3B of the Appellate Jurisdiction Act
Article 159 and the overriding objective cannot be invoked to circumvent express and mandatory provisions governing the institution and prosecution of appeals; without a valid notice of appeal there is no foundation for the appeal.
Costs
The applicants shall have the costs of the application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
From the above it is quite apparent that the endorsement, authentication and signature of the Deputy Registrar of notice of appeal is a mandatory requirement.
Indeed, we are persuaded that article 159 of the Constitution of Kenya and overriding objective cannot be invoked to circumvent express and mandatory provisions governing the institution and prosecution of appeals.
Without a valid notice of appeal, there is no proper foundation upon which the appeal can stand.
Accordingly, we are satisfied that the application has merit and we allow it with the consequence that that notice of appeal dated 17th November 2025, the record of appeal dated 19th January 2026, and all consequential proceedings founded thereon are struck out.
Issues in the judgment
#The record of appeal is dated 19th January 2026 while the application striking it out is dated 20th January 2026; the applicants describe the appellant as 'respondent' in the opening paragraph ('served on the applicants by the respondent') despite the appellant being James Omariba Nyaoga - internally inconsistent role designations.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisii County Assembly Service Board & 2 others v Nyaoga (Civil Appeal (Application) E015 of 2026) [2026] KECA 1429 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1429/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.