https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1335

Director of Public Prosecutions & another v Nyang’au & 5 others; Dr (Interested Party) (Civil Application E148 of 2026) [2026] KECA 1335 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1335 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E148 of 2026 KI Laibuta, JA July 10, 2026 Between Director of Public Prosecutions 1st Applicant The Inspector General of the National Police 2nd Applicant and Catherine Nyakoboke Nyang’u 1st Respondent The Ethics and Anti Corruption Commission 2nd Respondent The Chief Magistrate Court Milimani Law Courts 3rd Respondent and Kenya National Commission For Unesco 1st Interested Party Dr. Evangeline Njoka 2nd Interested Party Walter Omwenga Oyugi 3rd Interested Party and For Unesco ……………………………… 1St Interested Party Dr Interested Party (Being an application for extension of time to appeal out of time from the Judgment and Decree of the High Court of Kenya at Nairobi (L. N. Mugambi, J.) delivered on 18th July 2025inPetition No. E370 of 2022) Ruling 1.Before me is a Notice of Motion dated 28th January 2026 in which the applicants seek extension of time pursuant to rule 4 of the Court of Appeal Rules, 2010 (now 2022) to lodge their appeal from the Judgment and Decree of the High Court at Nairobi (L. N. Mugambi, J.) delivered on 18th July 2025 in Petition No. E370 of 2022. 2.The applicants’ Motion is supported by the affidavit of Henry Nyabuto Achochi, the 1st applicant’s Assistant Director of Public Prosecutions sworn on 28th January 2026 essentially deposing to the grounds on which their application was anchored, namely: that the applicants’ filed their Notice of Appeal dated 30th July 2025 through the CTS on 31st July 2025; that the 1st applicant requested for certified copies of proceedings on 19th September 2025 – with a reminder on 5th November 2025; but that the aforementioned Notice of Appeal was only lodged on 19th September 2025; that the certified copies of proceedings were received in November 2025; that the appeal is arguable with high chances of success; and that the delay is not inordinate. 3.Learned counsel for the applicants, Principal Prosecution Counsel, Victor Juma Owiti, filed written submissions and a case digest dated 12th June 2026 in support of their Motion citing four judicial authorities, the relevant of which I have duly considered. 4.Notably, none of the respondents or the interested parties replied to the applicants’ Motion or filed any written submissions, despite having been duly served with the hearing notice on 11th June 2026. 5.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. 6.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 applicants are yet to comply with this jurisdictional pre-requisite. 7.A cursory look at the record as put to me discloses an undated Notice of Appeal, and which is unsurprisingly yet to be lodged as required under rule 77(1). That undated ‘draft’ is annexed to the 1st applicant’s supporting affidavit as annexure No. HNA-4. Moreover, the said Notice of Appeal fails to comply with the mandatory provisions of rule 77(6) of this Court’s rules to wit it is wanting in form and not signed by the applicants or by any one on their behalf. 8.Furthermore, the Notice of Appeal mentioned at paragraph eight (8) of the 1st applicant’s affidavit in support – as being dated 30th July 2025 and lodged on 19th September 2025 (two months after the impugned decision was delivered) is not before me. What is at hand is an undated, unsigned and for lack of a better word, ‘unlodged’ Notice of Appeal. 9.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.” 10.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 applicants herein are yet to express their 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." 11.Having carefully examined the record before me, the applicants’ Notice of Motion dated 28th January 2026, the affidavit in support, the applicants’ submissions in support, I reach the inescapable conclusion that the applicants’ 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