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Court of AppealDismissedNot stated in the judgment

Cherono v Kenya Power and Lighting Company Limited (Civil Appeal (Application) E400 of 2025) [2026] KECA 368 (KLR)

Court of Appeal
27 February 2026
696 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to excuse a wrong date in a Notice of Appeal, ending the appeal before it began.

What this practically means

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Executive summary

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This was a single-judge application ruling of the Court of Appeal at Nairobi dismissing a Notice of Motion dated 3rd June 2025 brought under Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, 2022. The applicant sought extension of time to file and serve the Record of Appeal out of time against a judgment of the Employment and Labour Relations Court (DK Njagi Marete, J) delivered on 29th January 2025, and that the record filed on 27th May 2025 be deemed duly filed and served. The Notice of Appeal dated 3rd February 2025, however, cited the judgment as delivered on 31st January 2025. The Court held that a Notice of Appeal is the jurisdictional foundation of an appeal and that citing a wrong date identifies a different judicial determination, rendering the notice incurably defective; Article 159(2)(d) cannot cure jurisdictional defects. Relying on Owners of the Motor Vessel 'Lillian S', Abok James Odera, Equity Bank v West Link Mbo, Mae Properties and WMM v EWG, the Court found no competent appeal capable of being regularized, and that extension of time cannot issue in vacuo or in aid of a jurisdictionally defective foundation. The application was dismissed with costs to the respondent. No decision of the lower court was disturbed; the ruling binds no lower court beyond restating existing precedent on Rule 4 applications and defective notices of appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the discrepancy between the date of the impugned judgment (29th January 2025) and the date cited in the Notice of Appeal (31st January 2025) is a mere technical lapse curable under Article 159(2)(d) of the Constitution or a substantive jurisdictional defect
  2. 2.Whether extension of time to file and serve the Record of Appeal out of time can issue in aid of an appeal founded on a defective Notice of Appeal

Key legal issues

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01

Whether an extension of time under Rule 4 can validate an appeal instituted by a Notice of Appeal citing a wrong date of the impugned judgment

Holding

It cannot. A Notice of Appeal is the jurisdictional foundation of an appeal; citing a wrong date identifies a different judicial determination and renders the notice incurably defective. Extension of time cannot issue in aid of a jurisdictionally defective foundation.

Reasoning

The discretion under Rule 4 is wide and unfettered but must be exercised judicially upon settled principles and in furtherance of justice. Before exercising discretion, the Court must be satisfied there is a competent appeal capable of being regularized. Article 159(2)(d) is not a panacea for jurisdictional defects; procedural rules are handmaidens of justice but not irrelevant. Because the Notice of Appeal referenced a judgment delivered on a date different from the actual judgment of 29th January 2025, no competent appeal existed to regularize, and the application was fatally defective regardless of the explanation for delay.

p. 2

Legal principles established

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  • A Notice of Appeal citing the wrong date of the impugned decision is incurably defective and goes to jurisdiction; extension of time cannot cure a jurisdictionally defective foundation.

Court orders

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  1. 1.The Notice of Motion dated 3rd June 2025 is dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court
Not stated in the judgment
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, 2022

Relief refused

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Extension of time to file and serve the Record of Appeal out of time, and deeming of the Record of Appeal filed 27th May 2025 as duly filed and served

The Notice of Appeal cited the wrong date of the impugned judgment, an incurably substantive defect depriving the Court of jurisdiction over the 29th January 2025 judgment

p. 2

Costs

The Notice of Motion dated 3rd June 2025 is dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The discrepancy in the date of the impugned judgment is not cosmetic; it identifies a difierent judicial determination. This Court cannot assume jurisdiction over a judgment not properly referenced in a valid Notice of Appeal. The defect is substantive and goes to the competence of the appeal.
p. 2Wrong date in Notice of Appeal is a substantive jurisdictional defect
In the absence of a Notice of Appeal referencing the judgment delivered on 29th January 2025, there is no competent appeal capable of being validated through extension of time. Extension of time cannot issue in vacuo or in aid of a jurisdictionally defective foundation.
p. 2Extension of time cannot cure a defective Notice of Appeal
The Notice of Motion dated 3rd June 2025 is hereby dismissed with costs to the respondent.
p. 2Final orders / disposition

Issues in the judgment

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minor

The judgment text contains OCR errors, e.g. 'reafirmed' and 'difi erent', which affect verbatim quoting fidelity.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Cherono v Kenya Power and Lighting Company Limited (Civil Appeal (Application) E400 of 2025) [2026] KECA 368 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/368/eng@2026-02-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.