https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1336

Muthusi (Suing as the Administrator of the Late Jackson Muthusi Mwano) v Aimi Ma Kilungu Ltd & another (Civil Application E184 of 2026) [2026] KECA 1336 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1336 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E184 of 2026 KI Laibuta, JA July 10, 2026 Between Lydiah Jenny Katuku Muthusi (Suing as the Administrator of the Late Jackson Muthusi Mwano) Applicant and Aimi Ma Kilungu Ltd 1st Respondent Everlyne Kathini Kitule 2nd Respondent (Being an application for extension of time to lodge the Notice of Appeal out of time from the Judgment and Decree of the Environment and Land Court of Kenya at Makueni (E. O. Obaga, J.) delivered on 12th February 2026 in Appeal No. E006 of 2024) Ruling 1.Before me is a Notice of Motion dated 9th April 2026 in which the applicant seeks extension of time pursuant to rule 4 of the Court of Appeal Rules, 2022 to lodge her Notice of Appeal from the Judgment and Decree of the ELC at Makueni (E. O. Obaga, J.) delivered on 12th February 2026 in ELC Appeal No. E006 of 2024. 2.The applicant’s Motion is supported by her annexed affidavit sworn on 9th April 2026 essentially deposing to the 12 grounds on which her application was anchored, but to which I need not address myself in extenso, save to take note of the salient grounds on which the application is made, namely: that the appellate court delivered the impugned judgment on 12th February 2026 thereby dismissing the applicant’s appeal with costs to the respondents; that the delay in filing the Notice of Appeal was occasioned by the applicant’s need to “appraise and discuss” the outcome of the judgment with all the estate beneficiaries; that the time for lodging the Notice of Appeal lapsed on 5th March 2026; that the appeal is arguable with high chances of success; and that the respondents will not be prejudiced should the application be allowed. 3.On her part, the 2nd respondent (Everlyne Kathini Kitule) filed a replying affidavit sworn on 15th April 2026 stating, inter alia: that the applicant was required to file a Notice of Appeal on or before 26th February 2026; that the Notice was only filed on 10th March 2026; that the said Notice was served upon her advocate on 11th March 2026; and that the applicant’s explanation for the delay is vague, unsubstantiated and insufficient. 4.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. It is also noteworthy, that the applicant and the 2nd respondent did not file any submissions with regard to the Motion before me. 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 applicant is yet to comply with this jurisdictional pre-requisite. 7.A cursory look at the record as put to me discloses a draft Notice of Appeal dated 7th April 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. JN5. The applicant has even referred to it as “a draft notice of appeal”. 8.Moreover, the applicant’s Notice of Appeal dated 10th April 2026 alluded to and annexed to the 2nd respondent’s replying affidavit is similarly not lodged in the superior court. Needless to say, neither notices meet the requirements of rule 77(1) of this Court’s rules. 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 applicant herein is yet to express her 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 applicant’s Notice of Motion dated 9th April 2026, the affidavits in support and in reply thereto, I reach the inescapable conclusion that the applicants’ 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