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ELCAllowedELC Appeal No. 13 of 2024

Munyao & another v Kariuki (Environment and Land Appeal E013 of 2024) [2025] KEELC 5826 (KLR)

Environment and Land Court of Kenya
14 July 2025
4,270 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out an appeal filed seven months late because the appellants never sought permission to file out of time.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Kwale on a Notice of Motion dated 6th March 2025 by Susan Michael Kariuki, the successful plaintiff before the Principal Magistrate's Court, seeking the striking out of the Appellants' appeal (ELC Appeal No. 13 of 2024) for having been filed out of time without leave. The underlying judgment in Kwale MCCC Suit No. 66 of 2020 was delivered on 15th November 2023, with the decree issued on 23rd January 2024 and served on 25th January 2024. The appeal was not filed until 27th September 2024 - 240 days after the decree and 214 days beyond the 30-day period in Section 79G of the Civil Procedure Act. The application was unopposed; the Appellants neither appeared nor filed any response. The court framed three issues: whether the out-of-time appeal could be entertained without leave; whether the Respondent was entitled to the relief sought; and costs. Reviewing the jurisprudence on striking out pleadings (D.T. Dobie, Co-operative Merchant Bank, Yaya Towers) and on extension of time (Salat, Thuita Mwangi, Paul Musili Wambua, First American Bank), the court held Section 79G couched in mandatory terms and found no application for leave, no explanation for the delay and no diligence by the Appellants. The appeal was struck out as procedurally defective, and costs of both the application and the appeal were awarded to the Respondent.

Questions the Court framed

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

  1. 1.Whether the appeal filed by the Appellant should be entertained having been out of time and for having been instituted without leave of Court for enlargement of time.
  2. 2.Whether the Respondent is entitled to the relief sought from the Notice of Motion application dated 6th March, 2025
  3. 3.Who will bear the Costs of the Notice of Motion dated 6th March 2025?

Key legal issues

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01

Whether an appeal filed 240 days after the decree, without leave for extension of time, should be struck out

Holding

Yes - the appeal was filed out of time and without leave, was procedurally defective and was struck out.

Reasoning

Section 79G mandates filing within 30 days of the decree, extendable only upon a formal application showing good and sufficient cause. The decree was issued on 23rd January 2024 and served on 25th January 2024; the appeal was filed on 27th September 2024, 214 days late. The Appellants neither sought leave nor explained the delay and did not respond to the application, leaving the court no basis to exercise its discretion in their favour, and the Respondent would be prejudiced.

p. 8
02

Whether the court's power to strike out pleadings should be exercised on these facts

Holding

Yes - despite the power being discretionary and exercised sparingly, the appeal here was plainly instituted contrary to mandatory provisions.

Reasoning

The court reaffirmed that striking out is a draconian act to be used sparingly and cautiously, citing D.T. Dobie, Co-operative Merchant Bank and Yaya Towers. However, the defect here was not the merits of the appeal but its competence: it was filed without leave after an unexplained eight-month delay. The salat principles on extension of time place the burden on the party seeking indulgence, which the Appellants failed to discharge.

p. 8
03

Costs of the application

Holding

Costs follow the event under Section 27(1) of the Civil Procedure Act; the successful Respondent is entitled to the costs of the application and the appeal.

Reasoning

The court applied the well-established principle that costs follow the event and are discretionary, citing Jasbir Rai Singh and Cecilia Karuru Ngayu for the proposition that costs compensate the successful party rather than penalize the losing party. The application succeeded and the appeal was struck out, so the Respondent was entitled to costs.

p. 9

Legal principles established

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  • Section 79G of the Civil Procedure Act imposes a mandatory 30-day period for filing appeals from subordinate courts, subject to extension for good and sufficient cause on a formal application.
  • An appeal filed out of time without leave or any explanation for the delay is incompetent and liable to be struck out.

Court orders

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  1. 1.That the Notice of Motion application dated 6th March 2025 be and is hereby found to be merited and thus the appeal is struck out.
  2. 2.That the costs of the Notice of Motion application dated 6th March 2025 together with the costs to the appeal are hereby awarded to the Respondent.

The bench

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

majority

Wrote the judgment

On appeal from
Principal Magistrate's Court, Kwale
Kwale MCCC Suit No. 66 of 2020
Jurisdiction invoked
Appeal from the subordinate court to the Environment and Land Court under Section 79G of the Civil Procedure Act, Cap. 21; application under Sections 1A, 1B, 3A and 79G

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.

That the Notice of Motion application dated 6th March 2025 be and is hereby found to be merited and thus the appeal is struck out.
p. 9disposition - striking out of appeal
That the costs of the Notice of Motion application dated 6th March 2025 together with the costs to the appeal are hereby awarded to the Respondent.
p. 9disposition - costs
the term “shall” in Section 79G imposes a mandatory 30day filing requirement. The proviso allows for an extension if the Appellant demonstrates good and suficient cause.
p. 8mandatory nature of Section 79G
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
p. 6extension of time principles (Salat, adopted)
The Memorandum of Appeal, while procedurally correct in form under the provision of Order 42 of the Civil Procedure Rules, 2010, is rendered incompetent the Appellant never moved Court seeking leave of Court to file the said Appeal out of time.
p. 8incompetence of out-of-time appeal without leave

Issues in the judgment

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minor

Judgment gives inconsistent dates for the Memorandum of Appeal - described variously as dated 8th March 2024, 8th April 2024 and filed 27th September 2024

minor

Case name of the Gichuhi/Munyambu authority is spelled inconsistently within the judgment

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, "Munyao & another v Kariuki (Environment and Land Appeal E013 of 2024) [2025] KEELC 5826 (KLR)", Case Analysis (2025). ELC Appeal No. 13 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5826/eng@2025-07-14

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