https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1300

Sharifow v Agricultural and Food Authority & 2 others; Habco Agencies Limited (Interested Party) (Civil Application E158 of 2026) [2026] KECA 1300 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1300 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E158 of 2026 KI Laibuta, JA July 10, 2026 Between Abdirahid Abdul Sharifow Applicant and Agricultural and Food Authority Respondent and Habco Agencies Limited 1st Interested Party Supply Chain Ltd 2nd Interested Party and Habco Agencies Limited Interested Party (Being an application for extension of time to file and serve the Notice of Appeal out of time against the Ruling and Orders of the High Court of Kenya at Nairobi (L. N. Mugambi, J.) dated 19th September 2025 in Petition No. E072 of 2022) Ruling 1.Before me is a Notice of Motion dated 26th March 2026 in which the applicant (Abdirahid Abdul Sharifow) seeks extension of time pursuant to rule 4 of the Court of Appeal Rules, 2022 to file and serve his Notice of Appeal and leave to deem the letter requesting for certified copies of proceedings dated 16th March 2026 as duly filed and served against the Ruling and Orders of the High Court of Kenya at Nairobi (L. N. Mugambi, J.) dated 19th September 2025 in Petition No. E072 of 2022. 2.The applicant’s Motion is supported by his affidavit sworn on 26th March 2026 essentially deposing to the grounds on which his application was anchored, namely: that the applicant’s former advocates last updated him on the High Court matter on 31st March 2022; that thereafter, on 4th February 2026, the said firm served him with an application to cease from acting for him; that the applicant was then undergoing medical treatment in India, and was unable to immediately instruct alternative counsel; that upon his return, he learnt that his Petition had been dismissed on 19th September 2025 on a preliminary objection; that the inordinate delay was occasioned by his former advocate; and that the appeal is arguable with high chances of success. 3.Notably, neither the respondent nor the interested parties replied to the applicant’s Motion or filed any written submissions, despite having been duly served with the hearing notice on 11th June 2026. Interestingly, the applicant did not also file any written submissions to buttress his application. 4.Rule 4 of the Court of Appeal Rules gives the Court unfettered discretion to “… extend the time limited by these Rules, or by any decision of the Court or of a superior Court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act …,” on such terms as it thinks just. 5.I hasten to observe that such discretionary powers are only exercisable where the Court is satisfied that the intended appellant has successfully invoked its jurisdiction by first lodging a notice of appeal in obedience to rule 77(1) of the Court’s Rules. The applicant is yet to comply with this jurisdictional pre-requisite. 6.A cursory look at the record as put to me discloses a Notice of Appeal dated 16th March 2026, and which is yet to be lodged as required under rule 77(1). That ‘draft’ is annexed to the applicant’s supporting affidavit as annexure No.ABS-7. 7.For whatever it’s worth, I also take note that, the letter requesting for certified copies of the proceedings dated 16th March 2026 is clearly not copied to the respondent or interested parties. This omission is not for me to judge at this stage. 8.I need not over emphasise the fact that a notice of appeal is a jurisdictional prerequisite. Addressing itself to the mandatory requirement to file a notice of appeal, the Supreme Court in University of Eldoret and another v Hosea Sitienei and three others [2020] eKLR observed at para 36:“The filing of a notice of appeal is not premised on any occurrence or condition to be fulfilled by the appellant. The filing of a notice of appeal signifies the intention to appeal.” 9.On the authority of the University of Eldoret and Sitienei case (ibid), it is true to say that, in the absence of a notice of appeal properly on record, the applicant herein is yet to express his intention to appeal. Citing the Supreme Court decision in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others [2014] eKLR, this Court had this to say in Apungu Arthur Kibira v Independent Electoral and Boundaries Commission and 2 others [2018]eKLR:“A notice of appeal is a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave or not. It is a jurisdictional pre-requisite." 10.Having carefully examined the record before me, the applicant’s Notice of Motion dated 28th January 2026, the affidavit in support, I reach the inescapable conclusion that the applicant’s Motion is incompetent and is hereby struck out with no orders as to costs. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026.DR. K. I. LAIBUTA CArb, FCIArb............................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR