Cherono v Kenya Power and Lighting Company Limited (Civil Appeal (Application) E400 of 2025) [2026] KECA 368 (KLR) (27 February 2026) (Ruling) Neutral citation: [2026] KECA 368 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CIVIL APPEAL (APPLICATION) E400 OF 2025 J MOHAMMED, JA FEBRUARY 27, 2026 BETWEEN IRENE CHERONO .................................................................................. APPLICANT AND THE KENYA POWER AND LIGHTING COMPANY LIMITED .. RESPONDENT (Being an Application for extension of time to file and serve the Record of Appeal out of time against the Judgment and Decree of the Employment and Labour Relations Court (D.K. Njagi Marete, J.) delivered on 29th January 2025 in ELRC Cause No. 284 of 2019) RULING Background 1. This is a Notice of Motion dated 3rd June 2025 expressed to be brought pursuant to Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 4 of the Court of Appeal Rules, 2022 (this Court’s Rules). 2. The applicant seeks in the main extension of time to file and serve the Record of Appeal out of time against the judgment of the Employment and Labour Relations Court (ELRC) (DK Njagi Marete, J) delivered on 29th January 2025; and that the Record of Appeal filed on 27th May 2025 be deemed as duly filed and served. 3. The discretion under Rule 4 of this Court’s Rules is wide and unfettered. However, that discretion must be exercised judicially, upon settled principles, and in furtherance of justice. 4. The principles governing extension of time were settled in Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 (CAK) and reafirmed by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others [2014] eKLR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/368/eng@2026-02-27 1
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5. In Paul Wanjohi Mathenge v Duncan Gichane Mathenge Civil Application No. Nai. 50 of 2010), this Court reiterated that discretion is to be exercised on reason, not sympathy. However, before the Court can exercise discretion, it must first be satisfied that there exists a competent appeal capable of being regularized. 6. The impugned judgment herein was delivered on 29th January 2025. The Notice of Appeal dated 3rd February 2025 indicates an intention to appeal against a judgment delivered on 31st January 2025. 7. The question that arises is whether this discrepancy is a mere technical lapse curable under Article 159(2)(d) of the Constitution, or whether it goes to the root of jurisdiction. 8. A Notice of Appeal is the jurisdictional foundation of an appeal. It is the instrument that triggers the appellate jurisdiction of this Court. In Abok James Odera t/a AJ Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates, Civil Appeal (Application) No. 161 of 1999 (CAK), this Court held that a Notice of Appeal citing the wrong date of the impugned decision is incurably defective. That holding has consistently been applied as reflecting the principle that an appeal must clearly identify the judicial act being challenged. 9. In Equity Bank Limited v West Link Mbo Limited [2013] KECA 320 (KLR), this Court emphasized that without a valid Notice of Appeal, there is no competent appeal before it. In Mae Properties Limited v Joseph Kibe & another [2017] eKLR, the Court reiterated that failure to properly institute an appeal deprives the Court of jurisdiction. Further, the Supreme Court in WMM v EWG [2023] KESC 36 (KLR) acknowledged that a Notice targeting a non-existent decision by citing the wrong date is incurably defective. 10. The jurisprudential anchor of this principle remains Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd [1989] KLR 1, where it was held that jurisdiction is everything and without it a court must down its tools. 11. Article 159(2)(d) of the Constitution is not a panacea for jurisdictional defects. As cautioned in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others [2014] eKLR, procedural rules are handmaidens of justice and not obstacles but neither are they irrelevant. 12. The discrepancy in the date of the impugned judgment is not cosmetic; it identifies a different 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. 13. 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. 14. Consequently, notwithstanding any explanation for delay, the application is fatally defective. 15. The Notice of Motion dated 3rd June 2025 is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 27TH DAY OF FEBRUARY, 2026. JAMILA MOHAMMED .................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/368/eng@2026-02-27 2
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DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/368/eng@2026-02-27 3
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