https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1429

Kisii County Assembly Service Board & 2 others v Nyaoga (Civil Appeal (Application) E015 of 2026) [2026] KECA 1429 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1429 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Appeal (Application) E015 of 2026 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Kisii County Assembly Service Board 1st Applicant Kisii County Assembly 2nd Applicant Jacob Machogu Onkeo 3rd Applicant and James Omariba Nyaoga Respondent (Being an application to strike out the Notice of Appeal and Record of appeal from the Ruling and Order of the Employment and Labour Relations Court (ELRC) at Kisii, (Nzioka wa Makau, J.) dated 12th November 2025 in ELRC Misc. No. E006 of 2025) Ruling 1.The application before us is dated 20th January 2026 and is brought pursuant to rules 44 and 86 of the Court of Appeal Rules. The applicants seek, in the main, to have struck out the notice of appeal, the record of appeal and all documents lodged by the appellant, James Omariba Nyaoga. The motion is supported by the grounds on its face as well as the affidavit of 3rd applicant. It is contended in both, that the notice of appeal filed and served on the applicants by the respondent was defective for want of endorsement, signature and authentication by the Deputy Registrar of the court, thereby offending rule 77(6) of the Court of Appeal Rules. If the notice of appeal is not endorsed by the Registrar, then there is no evidence that it has been lodged as required by rule 77(1). 2.This omission is fatal as it divests this court of the necessary jurisdiction to entertain the appeal. That the applicants are greatly prejudiced as they are being swaddled and vexed by defective proceedings and forced to incur unnecessary costs. The applicants relied on Daniel Nkirimpa Monirei v Sayialel Ole Koilel & 4 Others [2016] eKLR and Mistry Premji Ganji (Investments) Ltd v Kenya National Highways Authority [2019] eKLR to underscore the principle that a defective notice of appeal is fatal and should not therefore sustain an appeal. Finally, the applicants maintain that the application was filed within the thirty-day window permitted by rule 86 of the Court of Appeal Rules and should therefore be allowed. 3.In opposition to the application, the respondent deposed that he duly lodged the notice of appeal on time, paid the requisite fees and served the same on the respondents again within the prescribed timelines. He contends that the applicants’ challenge based on the absence of the Deputy Registrar’s signature, authentication and endorsement was misplaced, as the Deputy Registrar’s role was limited to transmission of the notice to the court of appeal, not authentication. He maintained that endorsement was an administrative duty of the Deputy Registrar and as such any procedural lapse attributable to the Deputy Registrar should not be visited upon him. Further, if there were any defects, they were curable under article 159 of the Constitution. That in any event, there was no rule in the Court of Appeal Rules expressly requiring the Deputy Registrar of the court to endorse a notice of appeal prior to its service, though it has to be substantively in form D. Finally, he urged the court to exercise its inherent jurisdiction under sections 3A and 3B of the Appellate Jurisdiction Act to admit the appeal and determine it on the merits rather than dismissing it on technicalities. 4.When the application was called out for plenary hearing, Mr. Ochieng Oginga, teaming up Wilson Ngao and Zahira Nina, learned counsel appeared for the applicants whereas, Mr. Louis Johnson, learned counsel appeared for the respondent. The application was canvassed by way of written submissions with limited oral highlights. 5.Counsel for the applicants in their submissions merely reiterated what they had set out in the grounds in support of the application as well as the supporting affidavit. We therefore need not reiterate or rehash the same. 6.On the other hand, counsel for the respondent while conceding that the notice of appeal served on the respondents had not been endorsed, authenticated or signed by the Deputy Registrar of the court, he maintained that it had not occasioned any prejudice to the applicants. That the respondent complied with all procedural requirements by lodging and serving the notice of appeal within time. He argued that the purpose of the Notice of appeal is to notify parties of the intended appeal which was achieved, as a copy thereof was served on the applicants within time and was duly included in the Record of Appeal. He contended that the absence of the Registrar’s signature and endorsement was at most an irregularity, not a fatal defect, since the obligation lies with the Registrar under rule 78, not the appellant and that the respondent should not be punished for the administrative lapses of the Deputy Registrar. 7.Counsel further submitted that striking out the appeal on such a technicality would unjustly drive the respondent from the seat of justice as it will be tantamount to elevating form over substance. He invoked article 159(2)(d) of the Constitution and sections 3A and 3B of the Appellate Jurisdiction Act, in urging the Court to exercise its inherent jurisdiction to preserve the appeal. 8.Counsel concluded by submitting that the appeal raises arguable issues deserving determination on merit. While acknowledging that article 159(2)(d) cannot be used to cure non-compliance with express provisions of the law, he distinguished the present case as one where the respondent had fulfilled his obligations. He cited Julieta Marigu Njagi v Virginia Njoki Mwangi & Another [2022] eKLR and Kennedy Sukali Wambua v Nairobi Hospital [2026] KECA 369 (KLR), to caution against misuse of constitutional provisions, but maintained that the motion should be dismissed with costs and the appeal allowed to proceed. 9.Having considered the application, the affidavits filed, the rival submissions of counsel and the law, the issue for determination is straightforward, whether the impugned notice and record of appeal should be struck out. 10.In Daniel Nkirimpa Monirei v Sayialel Ole Koilel & 4 Others [2016] eKLR, this court held that a notice of appeal not duly endorsed by the Registrar is invalid and incapable of sustaining an appeal. The court stressed that compliance with the mandatory provisions of the Rules is not optional. Further, in Mistry Premji Ganji (Investments) Ltd v Kenya National Highways Authority [2019] eKLR, the court reiterated that a notice of appeal lacking the Registrar’s signature or rubberstamp is fatally defective and cannot be said to have been duly lodged. The court observed that such omission is a glaring deficiency in authentication, and an appeal founded on such a notice cannot stand. Likewise, in Salama Beach Hotel Ltd & 4 Others v Kenyariri & Associates Advocates & 4 Others [2016] eKLR, the court underscored that parties are bound by the mandatory nature of the appellate rules, and failure to comply renders subsequent proceedings incompetent. 11.The Supreme Court has also cautioned that while article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to technicalities, it cannot be invoked to cure defects that go to the root of jurisdiction. In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, the court stated that rules of procedure are handmaidens of justice, but they must be obeyed, and non‑compliance with mandatory provisions cannot be excused under article 159. 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. 12.Applying these principles to the circumstances of this application, it is conceded by the respondent that the notice of appeal herein was not authenticated, signed or endorsed by the Deputy Registrar as required under rule 77(6) of the Court of Appeal Rules. The rule is in terms that“A notice of appeal shall be substantially be in Form D as set out in the first schedule and signed by or on behalf of the appellant”. 13.And Form D is as follows:TAKE NOTICE that…………. being dissatisfied with the decision of the honourable justice ……. given at……on the day of……,20……intends to appeal to the Court of Appeal against the whole of the said decision/such part of the decision as decides thatThe address for service is…………….It is intended to serve copies of this notice on………Dated this……. day of………, 20…Signed…….TOThe Registrar of the High court of……at…. lodged in the High Courtof…….at this……day of…., 20….……………….Registrar 14.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. There cannot be any other interpretation to that requirement, otherwise the format would not have specifically been for the signature, endorsement, and or authentication by Registrar. In our view, failure to comply with this requirement is not a mere irregularity as claimed by the respondent but a fundamental defect that goes to the jurisdiction of this court. Without such endorsement how will the court know that the notice and record of appeal are authentic and were indeed was indeed filed? Further, for computation of time where the rules of this court so require, how will this be done! This is more so with the current system of e-filing in place. What will stop fake e-filing without such interventions by the Deputy Registrar of the court to ensure validity? 15.As it has been stated, article 159 of the Constitution is not a panacea of all manner of acts of omission, commission or ills attributable to counsel. Indeed, we agree with counsel for the applicant that article 159 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. 16.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. The applicants shall have the costs of the application. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.ASIKE-MAKHANDIA…………………………………JUDGE OF APPEALE. C. MWITA………………………………JUDGE OF APPEALB. ONGAYA………………………………JUDGE OF APPEALI certify that this is a true copy of the originalSigned.DEPUTY REGISTRAR