Kenya National Highways Authority v Alba Petroleum Limited & 4 others (Civil Application E059 of 2024) [2026] KECA 52 (KLR)
The bottom line
#The Court of Appeal refused to revive KeNHA's appeal because a struck-out Notice of Appeal kills the appeal entirely until that order is formally set aside.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is a valid application to extend time to file the Notice of Appeal, and the Memorandum and Record of Appeal before this Court
- 2.If so, whether the Applicant has demonstrated sufficient cause to warrant the grant of leave to extend time
Key legal issues
#Effect of a struck-out Notice of Appeal on a subsequent Rule 4 extension-of-time application
An application to extend time to regularize a Notice of Appeal that has already been struck out is overtaken by events and incompetent; the striking-out order remains valid and subsisting and cannot be overturned through the back door.
The Notice of Appeal dated 30th April 2024 was struck out by the Court on 18th March 2025 in Civil Application No. E053 of 2024 after the applicant did not respond or appear. With the Notice of Appeal struck out, the intended appeal ceases to exist in law. There is consequently no substrate upon which the discretion under Rule 4 can operate. Granting the orders would effectively set aside that subsisting order without a formal application to do so, which the Court cannot sanction.
Jurisdiction to entertain extension of time absent a valid Notice of Appeal
The Court lacks jurisdiction to entertain an application for leave to file a Memorandum and Record of Appeal out of time where there is no valid and subsisting Notice of Appeal.
The jurisdiction of the Court to entertain the filing of a Memorandum and Record of Appeal is predicated on a valid Notice of Appeal. Since the Notice underpinning the application was struck out, the jurisdictional foundation is absent, and the Court cannot invoke its discretion under Rule 4, Sections 3A and 3B of the Appellate Jurisdiction Act.
Legal principles established
#- Once a Notice of Appeal has been struck out, the intended appeal ceases to exist in law and there is nothing upon which the Court can exercise its discretion to extend time or deem documents as duly filed; an applicant cannot revive a struck-out Notice of Appeal through a Rule 4 extension-of-time application without first setting aside the striking-out order.
- Without a valid and subsisting Notice of Appeal, the Court of Appeal lacks jurisdiction to entertain an application for extension of time to file a Memorandum and Record of Appeal.
Court orders
#- 1.The Notice of Motion dated 24th May 2024 be and is hereby dismissed with costs to the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court at Mombasa
- Constitutional Petition No. 36 of 2022
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, 2022
Relief refused
#Leave to file and deem the Notice of Appeal dated 30th April 2024 as duly filed and served
The Notice of Appeal had already been struck out by the Court's order of 18th March 2025 in Civil Application No. E053 of 2024, so there is nothing upon which the Court can exercise its discretion
Leave to file the Memorandum and Record of Appeal out of time
Without a valid Notice of Appeal, the jurisdiction of the Court cannot be invoked
Costs
The Notice of Motion dated 24th May 2024 dismissed with costs to the 1st Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is trite that with the Notice of Appeal having been struck out, any intended appeal before this Court ceases to exist in law. As such, there is nothing upon which this Court can exercise its discretion to extend time or deem as duly filed.
Granting the orders sought would be tantamount to overturning a valid and subsisting order of this Court through the back door, which this Court cannot do.
In the absence of a valid and subsisting Notice of Appeal, in view of the Notice underpinning this application having been struck out, this Court lacks jurisdiction to entertain the application.
In sum, the Notice of Motion dated 24th May 2024, be and is hereby dismissed with costs to the 1st Respondent. It is so ordered.
Issues in the judgment
#The judgment recites the motion as brought under Sections 34 and 3B of the Appellate Jurisdiction Act, while counsel's submissions and the Court's framing refer to Sections 3A and 3B; the reference to 'Section 34' appears to be an error for Section 3A.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Highways Authority v Alba Petroleum Limited & 4 others (Civil Application E059 of 2024) [2026] KECA 52 (KLR)", Case Analysis (2026). Notice of Motion dated 24th May 2024 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/52/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.