Khaemba v Teachers Service Commission & 2 others (Civil Appeal 186 of 2019) [2025] KECA 203 (KLR)
The bottom line
#Kenya's Court of Appeal struck out an appeal because the notice of appeal was filed a year late without leave, ending the case on procedure.
What this practically means
#Executive summary
#Key legal issues
#Validity of an out-of-time notice of appeal and its effect on the Court's appellate jurisdiction
A notice of appeal lodged outside the fourteen days prescribed by Rule 75, without leave or extension of time under Rule 4, is incompetent; the Court's jurisdiction is not properly invoked and the appeal must be struck out without reaching the merits.
Rule 75 requires lodgement within fourteen days of the decision. Extension of time is possible under Rule 4, even after filing, but here no leave or extension was sought or obtained. Following Supreme Court authority adopting the Californian position that timely filing is a jurisdictional prerequisite, the Court held it could not ignore the defect at the hearing stage. Article 159(2)(d) does not rescue a party who deliberately failed to regularise the infraction.
Scope of Article 159(2)(d) and Sections 3A and 3B of the Appellate Jurisdiction Act
The overriding objective obliges the Court to apply the rules so as to facilitate just, expeditious and proportionate resolution of appeals, but does not excuse a deliberate failure to use available procedures.
The Court acknowledged the constitutional command to favour substantial justice over procedural technicality, read with Sections 3A and 3B of the Appellate Jurisdiction Act. However, it held that these provisions operate where a party has sought to make amends; a litigant who deliberately declines the lifeline of an extension application cannot invoke Article 159(2)(d) to cure the defect.
Legal principles established
#- A notice of appeal filed out of the fourteen-day period under Rule 75 without leave or extension of time is incompetent, and without a valid notice of appeal the Court of Appeal has no jurisdiction to hear the appeal.
- At the point of hearing an appeal, where extension of time to file a notice of appeal has neither been sought nor obtained, the Court cannot ignore the validity of the notice in considering its jurisdiction.
- Article 159(2)(d) cannot save a litigant who, having had the opportunity to regularise a procedural infraction, deliberately failed to do so.
Court orders
#- 1.The appeal is struck out
- 2.Costs awarded to the respondent
- On appeal from
- Employment and Labour Relations Court
- Petition No. 30 of 2017 (ruling by Nduma, J.)
- Jurisdiction invoked
- Appeals from the Employment and Labour Relations Court to the Court of Appeal under the Court of Appeal Rules 2010 (Rule 75 notice of appeal regime); jurisdiction contested on validity of notice of appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya National Highways Authority v Alba Petroleum Limited & 4 others (Civil Application E059 of 2024) [2026] KECA 52 (KLR)[2026] KECA 52 (KLR)30 Jan 2026followed
Cite this brief
#Cite this brief
Caselaw, "Khaemba v Teachers Service Commission & 2 others (Civil Appeal 186 of 2019) [2025] KECA 203 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/203/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.