1.The applicant has filed a Notice of Motion dated July 7, 2022 under Rule 4 of the Court of Appeal Rules. He seeks: extension of time pursuant to Rule 4 to appeal out of time from the judgment of the ELRC (Stella C. Rutto, J.) delivered on April 28, 2022in ELRC Cause No. 1670 of 2016; leave to file the record of appeal within 60 days of leave being granted; and orders that the costs of the application do abide the outcome of the intended appeal.
2.The applicant’s Motion is made on the grounds set out on the face thereof and is supported by the affidavit of Wangira Okoba A., learned counsel for the applicant, sworn on July 7, 2022. It is noteworthy that there is nothing on record to suggest that the applicant has filed any notice expressing his intention to lodge an appeal as required by Rule 77 of this Court’s Rules.
5.I also hasten to point out that the applicant’s application for leave to file a record of the intended appeal does not of itself excuse him from the requirement to express its intention to appeal by giving the requisite notice under Rule 77.
6.In so far as a Notice of appeal is a jurisdictional pre-requisite, nothing flows from a non-existent notice to invoke this Court’s jurisdiction to grant the orders sought pursuant to Rule 4 or any other Rule. In effect, its hands are tied, so to speak. I so hold cognisant of the general principle that it is only in exceptional circumstances that this court would raise its hand to slam shut the door to justice on the face of a litigant despite the constitutional guarantee of access to justice as enshrined in Article 48.
7.In addition to the foregoing, I must also add that the jurisdictional pre-requisite for a notice of appeal is not merely a technicality of procedure curable by invoking the provisions of Article 159(2) (d) of the Constitution, which mandates courts to administer justice without undue regard to technicalities of procedure, and which I have taken to mind. In this regard, the cases of Jaldesa Tuke Dabelo vs. IEBC & Another  eKLR; Raila Odinga and 5 Others vs. IEBC & 3 Others  eKLR; Lemanken Arata vs. Harum Meita Mei Lempaka & 2 others  eKLR; Patricia Cherotich Sawe vs. IEBC & 4 Others [2015 ]eKLR, among others, are a constant reminder that Article 159(2) (d) is not a panacea for all procedural ills even though “the exercise of the jurisdiction under Article 159 of the Constitution is unfettered especially where procedural technicalities pose an impediment to the administration of justice, save that Article 159(2) (d) of the Constitution is not a panacea for all procedural ills ….” It matters not that the overriding objectives set out in sections 3A and 3B of the Appellate Jurisdiction Act (Cap. 9) confer powers on this Court to dispense justice with greater latitude (see City Chemist (NBI) Mohamed Kasabuli suing for and on behalf of the Estate of Halima Wamukoya Kasabuli vs. Orient Commercial Bank Limited Civil Appeal No. Nai 302 of 2008 (UR No. 199 of 2008) (Unreported).
8.Having found that there is no notice of appeal on record, I find and hold that I have no jurisdiction to determine the applicant’s Motion, or grant any of the orders sought.