Mbugua & 2 others v Waema & 2 others (Civil Appeal (Application) E095 of 2025) [2026] KECA 999 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a Notice of Appeal is valid even if filed by a lawyer not formally on record, so no second notice or extension was needed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether time should be extended to file and serve the Notices of Appeal against the judgment of 30th April 2025
Key legal issues
#Whether a Notice of Appeal filed by an advocate not formally on record is incompetent
No. Rule 77 requires only that a person desiring to appeal give notice in writing, signed by or on behalf of the appellant; it does not require filing by counsel on record.
Rule 77 of the Court of Appeal Rules, 2022 requires notice in writing lodged in two copies with the registrar of the superior court, signed by or on behalf of the appellant. The firm of Aoko Githara & Co. Advocates lodged the Notice on behalf of the Applicants within the 14-day period. The Court held that at all times the Applicants had a valid and competent Notice of Appeal on record, so the alleged incompetence of the filing firm did not matter.
Whether extension of time should be granted to regularise a second Notice of Appeal
No extension was necessary because the first Notice, filed on 5th May 2025 within the prescribed period, was valid; the application was rendered superfluous.
The Court applied the Leo Sila Mutiso and Muringa Company principles on extension of time, but found the threshold question resolved: since the first Notice of Appeal was lodged within time on the Applicants' behalf, there was nothing to extend time for. Citing Ocean Shipping Company, the Court noted that validating a second notice where one already exists is unnecessary; the applicants instead obtained a deemed-filing order for the first notice.
Legal principles established
#- A Notice of Appeal under Rule 77 need not be filed by counsel formally on record; provided it was lodged on behalf of the appellant, it remains valid and competent.
- Where a valid Notice of Appeal was lodged within the prescribed period, an application to extend time to file a second notice is unnecessary and will not be granted.
- The discretion under Rule 4 to extend time is wide but must be exercised judiciously on settled principles, not on a whim.
Court orders
#- 1.The Notice of Appeal dated 5th May 2025 is deemed as having been properly filed and served
- 2.The Memorandum and Record of Appeal to be lodged and served in accordance with Rule 84 of the Court's rules
- 3.Costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court, Mombasa
- Mombasa ELRC Petition No. 8 of 2020
- Jurisdiction invoked
- Rules 4, 41 and 42 of the Court of Appeal Rules, 2022 and Sections 3A and 3B of the Appellate Jurisdiction Act
Relief refused
#Extension of time to file and serve a further Notice of Appeal dated 29th October 2025
The first Notice of Appeal dated 5th May 2025 was filed within the prescribed period and on behalf of the Applicants, so no extension was necessary; the second notice was superfluous
Costs
Costs in the appeal
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.
The rules of this Court do not specify that the Notice had to be filed by counsel on record. Provided a notice was filed on behalf of the Applicants, it remained a valid notice.
In efiect, at all times the Applicants had lodged a valid and competent Notice of Appeal, and therefore there was no reason for them to have filed a second Notice.
that the Notice of Appeal dated 5th May 2025 is deemed as having been properly filed and served;
that the Memorandum and Record of Appeal to be lodged and served in accordance with Rule 84 of this Court's rules; and
costs in the appeal.
Issues in the judgment
#The application is dated 29th October 2025 and the judgment is delivered 29th May 2026, yet counsel described the delay as approximately fourteen (14) days while the Court computed it as approximately 168 days (about five and a half months) - the parties' submissions and the Court's computation are in tension on the record as presented.
The coram lists only 'A.K. MURGOR, JUDGE OF APPEAL' without initial expansions, and the judgment does not state the Court of Appeal application number.
The names of the 2nd and 3rd Applicants are not given anywhere in the judgment; only the 1st Applicant, Nicholas Mbugua, is named.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbugua & 2 others v Waema & 2 others (Civil Appeal (Application) E095 of 2025) [2026] KECA 999 (KLR)", Case Analysis (2026). Court of Appeal Application (not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/999/eng@2026-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.