Nest Lounge & Grill v Director of Liquor Control & Licensing (Judicial Review Application E030 of 2023) [2026] KEHC 8980 (KLR) (26 June 2026) (Ruling)

Nest Lounge & Grill v Director of Liquor Control & Licensing (Judicial Review Application E030 of 2023) [2026] KEHC 8980 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 8980 (KLR) Republic of Kenya In the High Court at Mombasa Judicial Review Application E030 of 2023 J Ngaah, J June 26, 2026 Between Nest Lounge & Grill Appellant and Director of Liquor Control & Licensing Respondent Ruling 1.The application before court is a motion dated 20 May 2025 in which the applicant seeks the order that “the Honourable Court be pleased to extend time to file and/or allow the applicant to file appeal out of time”. The application is expressed to be filed under sections 1, 1A, 1B and 3A of the Civil Procedure Act, cap. 21 and order 50 Rule 6 of the Civil Procedure Rules. 2.It is supported by the affidavit of Francis Waichoya who has sworn that he is the applicant. He must have meant that he trades as Nest Lounge & Grill which is named in this application as the applicant, assuming it is a business name. 3.According to Waichoya his case was dismissed by Sewe, J. on 24 March 2025. However, there was a delay in uploading the judgment on the courts portal hence the delay in filing the appeal to the Court of Appeal. That notwithstanding, the applicant filed the notice of appeal on the same day that the judgment was delivered; to this end he swore as follows:“That I am aggrieved by the decision of the Honourable Court in its entirety and have proceeded to file its notice of appeal against the said judgment on 24th March 2025. (Annexed herewith is a copy of the Memorandum of Appeal together with notice of appeal dated 24th March 2025)”. 4.The respondent filed grounds of objection opposing the application. It has been pleaded on his behalf that this Honourable Court is bereft of jurisdiction to extend time to file an appeal out of time because under Rule 4 of the Court of Appeal Rules, 2022, that power is exclusively reposed in the Court of Appeal. Accordingly, the applicant’s application is contended to be incompetent, incurably defective and abuse of the court process. 5.The primary contention in this application turns on whether, the applicant can move this Honourable Court for extension of time to file an appeal in the Court of Appeal after he has filed the notice of appeal in that court. 6.According to Rule 77 of the Court of Appeal Rules, 2020 a notice of appeal initiates the appeal process, in the Court of Appeal, against decisions from the High Court. The rule reads as follows:77.Notice of appeal(1)A person who desires to appeal to the Court shall give notice in writing, which notice shall be lodged in two copies, with the registrar of the superior court. 7.Under sub-rule (2) the notice in sub rule (1) is to be filed within fourteen days after the date of the decision against which the appeal is lodged. This is, however, subject to rules 84 and 97. Rule 97 is about service of notices of cross-appeal and grounds affirming the decision appealed against. Rule 84 is more relevant to the question at hand because it provides when the appeal ought to be filed once the notice of appeal has been filed; it reads as follows:84.Institution of appeals(1)Subject to rule 118, an appeal shall be instituted by lodging in the appropriate registry, within sixty days after the date when the notice of appeal was lodged—(a)a memorandum of appeal, in four copies;(b)the record of appeal, in four copies;(c)the prescribed fee; and(d)security for the costs of the appeal:Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with subrule (2) within thirty days after the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy.(2)An appellant shall not be entitled to rely on the proviso to subrule (1) unless the appellant’s application for such copy was in writing and a copy of the application was served upon the respondent.(3)The period specified in subrule (1) for the institution of appeals shall apply to appeals from superior courts in the exercise of their bankruptcy jurisdiction. 8.According to rule 85, if the appeal is not filed within the prescribed timeline, the notice of appeal is deemed not only to have been withdrawn but also the appellant has to bear the costs of the appeal. It reads as follows:85.Effect of default in instituting appeal(1)If a party who has lodged a notice of appeal fails to institute an appeal within the appointed time, that party shall be deemed to have withdrawn the notice of appeal and the Court may, on its own motion or on application by any other party, make such order.(2)The party in default under subrule (1) shall be liable to pay the costs arising therefrom of any persons on whom the notice of appeal was served. 9.If the notice of appeal is not filed in time, the High Court has the mandate to extend time for the filing of the notice of appeal. This is provided for under section 7 of the Appellate Jurisdiction Act, cap. 9 which reads as follows:7.Power of High Court to extend timeThe High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired:Provided that in the case of a sentence of death no extension of time shall be granted after the issue of the warrant for the execution of that sentence. 10.When all these provisions are considered in their entirety, the farthest the High Court can go in appeals from its judgments to the Court of Appeal is to extend time for filing of the notice of appeal. Once the notice is filed, the court is bereft of jurisdiction on any subsequent proceedings relating to the appeal. The High Court cannot, for instance, entertain an application to interrogate the validity of the notice of the appeal; neither does it have the mandate to question whether the appeal filed subsequent to the notice of appeal has been filed within the time prescribed under rule 77 (2) of the Court of Appeal Rules. 11.Except for the limited mandate given to the High Court in section 7 of the Appellate Jurisdiction Act, only the Court of Appeal has the requisite jurisdiction to entertain an application and determine the question whether its Act and the rules made thereunder have been complied with. 12.It is in the same breath that only the Court of Appeal has the mandate to entertain an application for extension of time to file an appeal if, after filing of the notice of appeal, the appeal is not filed within the timeline prescribed by rule 77(2). For the avoidance of doubt, rule 4 of the Court of Appeal Rules states so; it reads as follows:4.Extension of timeThe Court may, on such terms as may be just, by order, 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, and a reference in these Rules to any such time shall be construed as a reference to that time as extended. 13.The “Court” to which reference has been made is, of course, the Court of Appeal (see rule 2 of the Rules). 14.Save for section 7 of the Appellate jurisdiction Act which, as noted, limits the High Court’s authority to extension of time within which a notice of appeal will be filed, there is no other provision either in the Act or the rules made thereunder that expressly or impliedly clothes the High Court with the mandate to extend time to file an appeal in the Court of Appeal. 15.This is the position that Bosire Ag. JA took in Edward Allan Robinson & 2 others vs Philip Gikaria Muthami, (Civil Application No.Nai 187 of 1997) (unreported), where the learned judge held as follows:“Section 7, above was not, in my view, intended to cover appellants whose appeals have been struck out for incompetence and who desire to file competent appeals. Once a litigant files a valid notice of appeal…the matter respecting which an appeal is intended, is thereby removed from the jurisdiction of the superior court except for limited matters in which specific jurisdiction has been conferred on it to deal with. Section 7, above, presupposes that an intending appellant has not taken any other steps in pursuance of that appeal.” 16.The Court of Appeal affirmed this to be the correct position in law in Peter Njoroge Mairo vs Francis Gicharu Kariri & another, Civil Appeal (Application) No 186 of 1999, (unreported), where it held:“In our view section 7, above, should be given a construction which would obviate ridiculous result. The intention of the Legislature in enacting section 7, above, clearly appears to us to be that it can only be used and more specifically the very first time the intending appellant manifests his intention to appeal.” 17.Based on the forgoing provisions of the law and the decisions of the Court of Appeal on the question that has been presented for determination, it is inevitable that the applicant’s application is misconceived and an abuse of the due process of the Court. It is hereby dismissed with costs. SIGNED, DATED AND DELIVERED ON 26 JUNE 2026NGAAH JAIRUSJUDGE