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ELCStruck OutAppeal dated 23/04/2021, filed 29/04/2021 (formerly at Kisumu ELC, transferred to Siaya ELC)

Akedi v Atieno; Aloo (Interested Party) (Environment and Land Appeal 3 of 2021) [2024] KEELC 6815 (KLR)

Environment and Land Court
17 October 2024
AKA. Y. Koross
1,579 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land appeal filed just three days late was struck out because the appellant never asked the court for permission to file out of time.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Siaya (A. Y. Koross, J) striking out an appeal on jurisdictional grounds. The underlying dispute concerned Commercial Block 1/346 Siaya, allegedly doubly allocated by Siaya Municipal Council to the appellant (plaintiff at trial) and to Tom Amina, the respondent's now-deceased husband. The appellant sued for trespass, seeking a declaration of ownership, permanent injunction, eviction and general damages; the respondent and interested party filed a defence and counterclaim asserting possession of over six years and seeking a declaration of ownership. The trial magistrate, in a judgment delivered on 25/03/2021, found the parties' parcels distinct (market area versus DC area) and directed the Siaya County Land Registrar to beacon and put parties in possession per the council's minutes of 2/5/2008. The appellant appealed to Kisumu ELC on 29/04/2021, later transferred to Siaya ELC; the appeal was dismissed for want of attendance on 17/01/2022 and reinstated on 14/12/2023. As the court prepared its judgment, it noted suo motu that the appeal was filed three days out of time without leave or extension. Applying Section 16A of the Environment and Land Court Act, Sections 79G and 95 of the Civil Procedure Act, and Supreme Court authority, the court held the appeal a nullity, incompetent and struck out, with each party bearing their own costs since the respondent and interested party did not participate. The merits were never determined.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an appeal filed outside the stipulated statutory timelines and without leave of court or extension of expired time is competently before the court and capable of being determined on its merits

Key legal issues

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01

Competence of an appeal filed outside the statutory 30-day period without leave or extension of time

Holding

The appeal was incompetent, a nullity and struck out; the court was bereft of jurisdiction to hear it on the merits

Reasoning

Section 16A of the Environment and Land Court Act, mirroring Section 79G of the Civil Procedure Act, requires appeals from the lower court to be filed within 30 days. Applying Section 95 CPA and Order 50 Rule 3 CPR, the last day for filing fell on 26/04/2021. The appeal was lodged on 29/04/2021, three days late, and no leave or extension appeared in the record. Citing Supreme Court authority, such a filing is a nullity and the court cannot entertain it.

p. 4
02

Whether the court could extend time of its own motion

Holding

No; extension of time must be sought by the party, and the court has no power to extend time suo motu

Reasoning

Following Aburili J in Willis J. Ochieng & another v Samwel Abongo Asembo, the right of appeal lapses once the statutory period expires, and while the court retains discretion to enlarge time under Section 95 of the Civil Procedure Act on a party's application, it cannot do so on its own motion because it is a jurisdictional issue. In this case the appellant never sought such leave, so the court could not rescue the defective filing.

p. 3

Legal principles established

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  • An appeal filed out of time without leave of the court is a nullity and of no legal consequence
  • Where a court has no jurisdiction it must down tools at the outset

Court orders

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  1. 1.The appeal is hereby struck out
  2. 2.Each party shall bear their respective costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AK
majority

Wrote the judgment

On appeal from
Principal Magistrate's Court (trial magistrate)
Suit over Commercial Block 1/346 Siaya, claim dated 5/04/2017
Jurisdiction invoked
Section 16A of the Environment and Land Court Act; Sections 79G and 95 of the Civil Procedure Act; Order 50 Rule 3 and Order 42 Rule 13(4)(f) of the Civil Procedure Rules

Relief refused

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Determination of the appeal on its merits (declaration of ownership, permanent injunction, eviction/vacant possession as sought in the appeal)

The appeal was filed out of time without leave or extension, rendering it a nullity and depriving the court of jurisdiction

p. 4

Costs

Each party shall bear their respective costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a. That the appeal is hereby struck out. b. That each party shall bear their respective costs. It is so ordered.
p. 4Final orders - striking out of appeal and costs
this court was bereft of jurisdiction to entertain the appeal and finds it is incompetent, a nullity, incurably defective and amenable for being struck out in limine
p. 4Jurisdiction - appeal filed out of time without leave is a nullity
No appeal can be filed out of time without leave of the Court. Such a filing renders the ‘document’ so filed a nullity and of no legal consequence.
p. 3Supreme Court authority on out-of-time filings

Issues in the judgment

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minor

The decision is styled a ruling although the record refers to the matter having been reserved for judgment; the court itself notes this

minor

Names of the parties are not stated in the extract, which refers only to 'the appellant', 'the respondent' and 'the interested party'

minor

Typographical error 'plaintifi' for 'plaintiff' in the judgment text

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Akedi v Atieno; Aloo (Interested Party) (Environment and Land Appeal 3 of 2021) [2024] KEELC 6815 (KLR)", Case Analysis (2024). Appeal dated 23/04/2021, filed 29/04/2021 (formerly at Kisumu ELC, transferred to Siaya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6815/eng@2024-10-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.