Lubulellah & Associates v Gilbi Construction Company Limited (Environment and Land Miscellaneous Application E157 of 2023) [2025] KEELC 4996 (KLR)
The bottom line
#A Kenyan court struck out a late application for permission to appeal a lawyer's fees ruling because the client missed the 14-day deadline and never asked for more time.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for leave to appeal was filed out of time
- 2.Whether the applicant is entitled to a stay of execution pending the intended appeal
- 3.Who should bear the costs of the application
Key legal issues
#Whether an application for leave to appeal filed outside the 14-day period without a prayer for extension of time is competent
It is incompetent and the court cannot exercise its discretion on it; the application is struck out.
Paragraph 11(3) of the Advocates (Remuneration) Order requires leave of the judge for an appeal but does not stipulate the form or time. Order 43 Rule 1(3) of the Civil Procedure Rules fills that gap, requiring the application to be made orally when the order is made or within fourteen days. The applicant filed 19 days late, offered no explanation and sought no extension of time, leaving no proper application on which discretion could be exercised.
Whether the applicant was entitled to a stay of execution pending the intended appeal
The stay prayer was not determined on its merits because the application itself was incompetent and struck out.
Although the applicant argued that the intended appeal was arguable and offered security, and the respondent contended that substantial loss was not demonstrated and that a successful party is entitled to the fruits of judgment, the court did not reach these merits. Since no proper application was before the court, the stay prayer fell away with the striking out of the chamber summons.
Legal principles established
#- An application for leave to appeal under the Advocates (Remuneration) Order must be made to the court making the order appealed from, orally at the time the order is made or within fourteen days from the date of the order.
- Where an application for leave to appeal is filed out of time without a prayer for extension of time, it is incompetent and must fail.
Court orders
#- 1.The chamber summons dated 3rd December, 2024 is struck out
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 48 of the Constitution; Sections 3A and 63(e) of the Civil Procedure Act; Rule 11(3) of the Advocates Remuneration Order; Order 42 Rule 6(2) of the Civil Procedure Rules
Relief refused
#Leave to file an appeal from the ruling delivered on 14th November, 2024
The application was filed 19 days after the ruling, beyond the 14-day period under Order 43 Rule 1(3) of the Civil Procedure Rules, and no leave to extend time was sought, so there was no proper application before the court.
Stay of execution and/or further proceedings pending the intended appeal
It fell with the incompetent application; without a proper application the court could not exercise its discretion.
Costs
I make 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.
From the above, the chamber summons dated 3rd December, 2024 is hereby struck out. I make no orders as to costs.
The client/applicant filed this application 19 days after the ruling was delivered. No leave to extend time to file this application was sought. It thus follows that there is no proper application before the court.
An applications for leave to appeal under section 75 of the Act shall in the first instance be made to the court making the order sought to be appealed from, either orally at the time when the order is made, or within fourteen days from the date of such order.
Issues in the judgment
#The judgment does not print the case number, court name or station in the extract; the court is inferred from the citation of ELRC decisions and the prior ruling by Justice Oguttu Mboya.
The parties are identified inconsistently between affidavit and submissions - the applicant's advocate is named Eugene Lubale Lubulellah but the deponent of the replying affidavit is described as counsel for the advocate/respondent.
The judgment states the applicant filed the application 19 days after the ruling while the respondent deposed it was 21 days late.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lubulellah & Associates v Gilbi Construction Company Limited (Environment and Land Miscellaneous Application E157 of 2023) [2025] KEELC 4996 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4996/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.