Gathongo v Njenga & 4 others (Civil Application E137 of 2025) [2026] KECA 836 (KLR)
The bottom line
#Kenya's Court of Appeal struck out late notices of appeal, confirming that even with leave to appeal, the 14-day filing deadline still applies.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents' undated notices of appeal, filed out of time without payment of requisite fees, should be struck out
- 2.Whether leave to appeal granted by the trial court (45 days) extends or overrides the 14-day period for lodging a notice of appeal under Rule 77(2) of the Court of Appeal Rules, 2022
- 3.Whether Rules 77(2) and 86 of the Court of Appeal Rules, 2022 apply to appeals requiring leave, such as probate matters
Key legal issues
#Distinction between leave to appeal and a notice of appeal
Leave to appeal is permission to challenge a decision where no automatic right exists, while a notice of appeal is the formal document initiating an appeal as of right and is a jurisdictional pre-requisite; the two are not interchangeable
The court held that a party granted leave to appeal is still bound by the 14-day window in Rule 77(2) for lodging the notice of appeal. Leave extends no right to file the notice outside the rule's timeline. Compliance with procedural rules is mandatory notwithstanding Article 159's override of technicalities, and parties cannot re-write the rules through their own misconstruction.
Effect of filing a notice of appeal out of time without extension of time
A notice of appeal filed outside the 14-day period without leave of the court (extension of time) is a nullity and a candidate for striking out
Relying on Rule 77(2) of the Court of Appeal Rules, 2022 and precedent including Safaricom Limited v Jack K. Khanjira, the court affirmed that late filing without extension of time is a jurisdictional defect. Article 159 does not excuse non-compliance with procedural imperatives; disregarding timelines leads to an anarchical free-for-all in the administration of justice.
Applicability of Rules 77(2) and 86 to probate appeals requiring leave
The respondents' contention that Rules 77(2) and 86 apply only to automatic appeals was rejected; a notice of appeal must be filed within the stipulated period whether or not leave is required
The respondents argued that probate matters carry no automatic right of appeal and hence Rules 77(2) and 86 did not apply. The court, following the Supreme Court in Mbugua alias George Boniface Nyanja v Iqbal and Salat v IEBC, held that the notice of appeal is a primary document to be filed outright regardless of whether the subject matter requires leave.
Legal principles established
#- A notice of appeal must be lodged within 14 days of the decision appealed against, whether or not leave to appeal is required; leave and the notice of appeal are distinct steps
- Filing a notice of appeal outside the prescribed 14-day window without an extension of time is a jurisdictional defect warranting striking out
- Filing a notice of appeal is a jurisdictional pre-requisite for an appellate court to entertain an appeal, even where the subject matter requires leave
Court orders
#- 1.The applicant's application dated 10th December 2025 is allowed in terms of prayers (2) and (3)
- 2.The undated notices of appeal served upon the applicant via e-mail on 13th November 2025 are struck out
- 3.The respondents shall pay the costs of this application to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act (Section 3A and 3B) and the Court of Appeal Rules, 2022 (Rules 77(2) and 86), with Article 159 of the Constitution
Relief refused
#Respondents' attempt to rely on the 45-day leave period as justifying late filing of the notice of appeal
Leave to appeal and filing a notice of appeal are distinct; a notice of appeal must be filed within 14 days under Rule 77(2) whether or not leave is required
Costs
The respondents shall pay the costs of this application to the applicant.
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.
We must underscore that there is a clear distinction between leave to appeal and filing a notice of appeal.
filing a notice of appeal outside this window without first obtaining leave of the court (an extension of time) is a jurisdictional defect that typically leads to the notice being struck out or declared a nullity
Accordingly, we allow the applicant’s application dated 10th December 2025 in terms of prayers (2) and (3) and strike out the undated notices of appeal served upon the applicant via e-mail on 13th November 2025.
The respondents shall pay the costs of this application to the applicant.
Issues in the judgment
#Names of the 1st and 2nd respondents are not stated anywhere in the judgment, and the case number and neutral citation of this application are not given
The decision is a substantive interlocutory application ruling; no appeal number or neutral citation appears on the certified copy
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathongo v Njenga & 4 others (Civil Application E137 of 2025) [2026] KECA 836 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 10th December 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/836/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.