National Union of Water and Sewerage Employees (nuwase) & 3 others v Nairobi City Water & Sewerage Company Limited & 5 others
The bottom line
#Kenya's Court of Appeal struck out an appeal because the appellants missed filing deadlines and never served the notice of appeal.
What this practically means
#Executive summary
#Key legal issues
#Effect of non-service of the notice of appeal
Failure to serve the notice of appeal within the stipulated time is fatal and renders the appeal incompetent ab initio, leaving the court without jurisdiction to entertain the appeal.
Rule 77(1) of the Court of Appeal Rules, 2022 requires service of the notice of appeal on all persons directly affected within seven days of lodging. Service alerts the respondent that the matter is not concluded and enables preparation for the appeal. Non-service ambushes the respondent and occasions prejudice. Following Law Society of Kenya and Daniel Nkirimpa Monirei, the defect destroys the jurisdiction of the appellate court; there is no valid notice of appeal to clothe the court with jurisdiction.
Filing the record of appeal out of time without leave
A record of appeal filed beyond the sixty-day period in rule 84 without leave, extension of time or a certificate of delay is not properly on record and must be struck out.
The record of appeal was filed at least 178 days after the notice of appeal, far beyond the sixty days prescribed by rule 84. No certificate of delay or application for extension of time was placed before the court, and the appellants filed no affidavit in reply or submissions on the application. Following Daniel Nkirimpa Monirei and Ramji Davji Vekaria, out-of-time lodgment is a substantive defect not curable under article 159(2)(d) or sections 3A and 3B, and the record is not properly on record.
Cumulative effect of the procedural defects
The combined defects of non-service of the notice of appeal and out-of-time filing of the record of appeal go to the root of the court's jurisdiction, making the appeal incompetent and liable to be struck out.
The court drew a direct parallel with Daniel Nkirimpa Monirei, which it described as being on all fours. In that case both defects led to striking out the notice of appeal and the record of appeal. Here, the same two defects existed, the appellals filed no reply contesting the facts, and no validation of the out-of-bounds steps was sought. The cumulative effect is incompetence of the appeal as a whole.
Legal principles established
#- The timelines for filing appeals in the Court of Appeal are mandatory and not merely directory; strict compliance with the rules on lodging appeals is required.
- Failure to serve a notice of appeal within the time prescribed by rule 77(1) of the Court of Appeal Rules goes to the jurisdiction of the appellate court and renders the appeal incompetent ab initio.
- Lodging an appeal out of time is not a procedural technicality curable under the overriding objective; it is a substantive issue going to the core of an affected party's right to reasonable time to prepare for an appeal.
Court orders
#- 1.The application dated 9th October, 2020 is allowed
- 2.The notice of appeal dated 2nd November, 2019 filed by the respondents/appellants is struck out
- 3.The record of appeal dated 18th May, 2020 is struck out
- 4.The applicant shall have the costs of the application
- On appeal from
- Environment and Land Court
- Not stated in the judgment as reproduced
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules, 2022 (rules 77(1) and 84) and sections 3A and 3B of the Appellate Jurisdiction Act (referred to in the judgment as the 'Appellant Jurisdiction Act'); no specific constitutional or statutory provision invoked as the source of the court's jurisdiction.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Union of Water and Sewerage Employees (nuwase) & 3 others v Nairobi City Water & Sewerage Company Limited & 5 others", Case Analysis (2025). Not stated in the judgment as reproduced. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1464/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.