Jane Akinyi Oriwa & 1 other v Olik Omundo

delay in filing the Notice of Appeal was due to the fact that the Petitioners did not have sufficient funds to instruct their Advocates to prefer the appeal within the time that the law provides. The deponent reiterates her position that the intended appeal has high chances of success. 5. The application is opposed by the Objector, who takes the view that the application is incompetent as the same ought to have been filed before the Court of Appeal. The application is further opposed on the ground that the Petitioners have not demonstrated that they have requested for certified copies of proceedings. The further ground upon which the application is resisted is that the reason for the delay in filing the notice of appeal has not been aptly explained. 6. The Objector thus takes the position that the mere averment by the Petitioners that they did not have sufficient funds to instruct an Advocate to file a Notice of Appeal is not a satisfactory explanation, in the circumstances. 7. This court directed that the application proceeds by way of written submissions and the parties herein filed their respective submissions. 8. I have perused and considered the application the respective positions of the parties, their submissions and the record in its entirety. The application seeks an order that the Petitioners be granted leave to file a Notice of Appeal out of time. 9. What is clear from the record is that the ruling and order from which the Petitioners intend to appeal was delivered on 29th May, 2024. Any party aggrieved by the same was required, under Rule 75 of the Court of Appeal Rules, to file a Notice of Appeal within 14 days from 29th May, 2024. The time for filing the same therefore lapsed on 12th June, 2024. The application subject of which this ruling is made was file 19 days after the expiry of the said period. Admittedly, the Petitioners did not file the Notice of Appeal within that period. 10. What this court should then proceed to determine is: a. Whether this is the proper forum for the application? b. Whether the Applicant has met the prerequisites for the grant of leave to appeal out of time. c. Subject to (a) above, whether the court should exercise its discretion to grant the Applicant leave to file its appeal out of time. d. A determination as to costs. 11. I will proceed to address the first issue, which is whether this court is the proper forum with jurisdiction to entertain and determine the application to file a Notice of Appeal out of time or whether the application ought to have been filed in the Court of Appeal, as profiered by the Objector. 12. The Petitioners have relied on Section 79G of the Civil Procedure Act and take the view that this court has the discretion under the said provision to extend or enlarge the time within which to file a Notice of Appeal. Let us read the said provision: 13. Section 79G of the Civil Procedure Act provides as follows: 79G. Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16685/eng@2025-09-18 2

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which the lower court may certify as having been requisite for the preparation and delivery of a copy of the decree or order: Provided that an appeal may be admitted out of time if the Appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time. 14. It is clear from the text of the above provision of statute that the same applies to appeals from the subordinate courts to the High Court and not those from the High Court to the Court of Appeal. 15. When a party intends to appeal a High Court decision to the Court of Appeal, they must file a Notice of Appeal within 14 days. The said Notice is filed under Rule 77(2) of the Court of Appeal Rules. 16. In the case of Nicholas Kiptoo Korir arap Salat v IEBC and 7 Others [2014] eKLR) the Supreme Court held, inter alia, that a Notice of Appeal that is filed in respect of a decision from the High Court is a jurisdictional document and must be filed in accordance with the Court of Appeal Rules within 14 days. 17. It was held in the case of Patel v Waweru & 2 others [2003] KLR 361 that once the period of 14 days lapses, only the Court of Appeal can regularize the default by considering extending the same. 18. In Equity Bank Ltd v West Link Mbo Ltd [2013] eKLR the Court of Appeal reiterated that a Notice of Appeal is a document under its procedural regime and any extension of time to file it must be sought from the Court of Appeal itself and not the High Court. 19. Guided by the decisions above, I reach the finding that this court does not have jurisdiction to grant leave to the Petitioners to file their intended Notice of Appeal out of time. 20. What way then, for the Petitioner’s application? The path that I am now required to follow is that that the decision of Motor Vessel Lillian S v Caltex Oil (Kenya) Ltd [1989] KLR 1 has set, that: “ Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 21. Having determined that I do not have jurisdiction to determine the application, I cannot proceed to determine the merits of the application. I have no option but to down my tools, with the result that I proceed to strike out the Notice of Motion dated 1st July, 2024, as the same was filed before a court that lacks jurisdiction to determine it. 22. I make no order as to costs, considering the nature of the matter. 23. This file is hereby closed. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 18TH DAY OF SEPTEMBER, 2025. JOE M. OMIDO. JUDGE For Appellant: Mr. P.D. Onyango for Mr. Bagada. For Respondent: No appearance. Court Assistants: Mr. Ngoge & Mr. Juma. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16685/eng@2025-09-18 3

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