https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1377

Matheka v Kenya Airways Company Ltd & another (Civil Application E180 of 2026) [2026] KECA 1377 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1377 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E180 of 2026 KI Laibuta, JA July 10, 2026 Between John Bosco Matheka Applicant and Kenya Airways Company Ltd 1st Respondent Kenya Airline Pilots' Association 2nd Respondent ((Being an application for extension of time to file and serve the Notice, Memorandum and Record of Appeal out of time from the Judgment and Decree of the Employment and Labour Relations Court of Kenya at Nairobi (Byram Ongaya, J.) delivered on 17th December 2025 in Petition No. E156 of 2025) Ruling 1.Before me is a Notice of Motion dated 9th April 2026 in which the applicant (John Bosco Matheka) seeks extension of time pursuant to rule 4 of the Court of Appeal Rules, 2010 (now 2022) to file and serve his Notice, Memorandum and Record of Appeal and deem the Notice of Appeal as “duly filed and served, upon payment of requisite fees” from the Judgment and Decree of the ELRC at Nairobi (Byram Ongaya, J.) delivered on 17th December 2025 in Petition No. E156 of 2025. 2.The applicant’s Motion is supported by his annexed affidavit sworn on 9th April 2026 essentially deposing to the 8 grounds on which his application was anchored, namely: that the trial court delivered the impugned judgment on 17th December 2025 thereby dismissing the applicant’s petition with no orders as to costs; that the delay in filing the Notice of Appeal was occasioned by the Court’s Christmas vacation and ongoing “good faith” negotiations between the applicant and the 1st respondent; that the “need to appeal only crystallised upon receipt of the 1st respondent’s letter dated 18th March 2026 indicating commencement of agency fee deductions; that the delay was not deliberate nor inordinate; that the appeal is arguable with high chances of success; and that the respondents will suffer no prejudice should leave be granted. 3.In support of the Motion, learned counsel for the applicant, M/s. Achola Odhiambo & Company Advocates, filed written submissions and a list of two authorities both dated 28th April 2026 which I have duly considered. Learned counsel urged me to allow the application, extend time for filing and serving the Notice of Appeal, grant leave to file the Memorandum and Record of Appeal and award costs in the cause. 4.On its part, the 2nd respondent (Kenya Airline Pilots’ Assiciation) filed a replying affidavit sworn on 12th June 2026 by Captain Dzochera Warrakah, its General Secretary and Chief Executive Officer stating, inter alia: that the Court’s Christmas vacation does not prevent an aggrieved party from filing a Notice of Appeal and request for certified proceedings through the e-filing portal; that the applicant’s request for certified copies of proceedings was done out of time; that the 2nd respondent is not aware of any ongoing discussions; that the right to appeal crystalises upon delivery of a decision regardless of any external events; and that the current application is an afterthought and an abuse of court process. 5.In opposition, learned counsel for the 2nd respondent, M/s. Muma & Kanjama Advocates, filed written submissions dated 22nd June 2026 which I have also duly considered. Counsel urged me to dismiss the application with costs to the 2nd respondent. 6.Though served with a hearing notice on 11th June 2026, the 1st respondent did not file any submissions or affidavits in reply to the applicant’s Motion. 7.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. 8.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. 9.A cursory look at the record as put to me discloses a draft Notice of Appeal dated 23rd 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. JBM 4 – (a). The applicant has even referred to it as “a draft notice of appeal” at paragraph 14 of his affidavit. 10.Moreover, the applicant prays that I deem the said Notice of Appeal as duly filed and served “upon payment of the requisite fees” which confirms and leaves no doubt that what is before me is a mere draft and not more. 11.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.” 12.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 her intention to appeal. Citing the Supreme Court decision inNicholas 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." 13.Having carefully examined the record before me, the applicant’s Notice of Motion dated 9th April 2026, the affidavits in support and in reply thereto, the rival submissions, I reach the inescapable conclusion that the applicant’s Motion is incompetent and is hereby struck out with costs to the 2nd respondent. 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