Wairioko v Mwalimu National Savings and Credit Cooperative Society Limited (Cause E940 of 2021) [2025] KEELRC 829 (KLR)
The bottom line
#Once you file a Notice of Appeal, only the Court of Appeal can extend time for it, even if it was filed late.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to entertain the Claimant's Notice of Motion dated 2nd July, 2024.
- 2.Whether Orders sought in the application are capable of being granted by this Court.
Key legal issues
#Whether the ELRC retains jurisdiction to extend time for filing a Notice of Appeal after a Notice of Appeal has already been lodged out of time
The Court lacks jurisdiction; filing of the Notice of Appeal, though out of time, transferred the matter to the Court of Appeal's jurisdiction.
The Court's Case Tracking System confirmed that a Notice of Appeal dated 30th April 2024 was on record, filed on 4th June 2024. That filing, although out of time, removed the suit from the ELRC's jurisdiction regarding its Judgment of 25th April 2024 and placed it within the Court of Appeal's realm. Section 7 of the Appellate Jurisdiction Act confers no power on the High Court to extend time where a Notice of Appeal has already been given; any question of the validity of the Notice is for the appellate court.
Legal principles established
#- The High Court's power under Section 7 of the Appellate Jurisdiction Act does not extend to granting extension of time where a Notice of Appeal has already been lodged, even if out of time; such matters fall within the Court of Appeal's jurisdiction.
- An appeal to the Court of Appeal is deemed filed when a Notice of Appeal is lodged in the trial court, which ousts the trial court's jurisdiction over matters touching on that Notice.
- A court without jurisdiction must down its tools.
Court orders
#- 1.The Claimant's Notice of Motion dated 2nd July, 2024 is struck out with no orders as to costs.
- 2.The Claimant/Applicant may file an appropriate application in the Court of Appeal, if she so wishes.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution of Kenya 2010 and Section 7 of the Appellate Jurisdiction Act
Relief refused
#Leave to extend time to file a Notice of Appeal against the Judgment of 25th April 2024
The Court lacks jurisdiction to extend time where a Notice of Appeal has already been lodged, albeit out of time; such issues fall to the Court of Appeal.
Deeming of the Notice of Appeal dated 30th April 2024 and letter requesting proceedings dated 4th May 2024 as duly filed and served
The application was struck out for want of jurisdiction before the second issue could be determined.
Costs
No orders as to costs
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.
Hence, this Court lacks jurisdiction to extend time where a Notice of Appeal has been given, though out of time.
Any issue touching on the filed Notice of Appeal, or any issue touching on the validity or otherwise of the Notice of Appeal, can only be addressed by the Appellate Court.
The Claimant's Notice of Motion dated 2nd July, 2024 is hereby struck ofi with no orders as to costs.
Issues in the judgment
#Section 7 of the Appellate Jurisdiction Act is quoted with the heading 'Power of the High Court to extent time' and the phrase 'may extent the time' - apparent typographical errors for 'extend' reproduced in the judgment text.
The Respondent's grounds of opposition dated 2nd December 2024 post-date the application of 2nd July 2024 by nearly five months; the judgment does not explain this interval.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wairioko v Mwalimu National Savings and Credit Cooperative Society Limited (Cause E940 of 2021) [2025] KEELRC 829 (KLR)", Case Analysis (2025). ELRC Cause No. E940 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/829/eng@2025-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.