Catholic Diocese of Malindi Registered Trustees v Mlewa & 3 others (Environment and Land Appeal E029 of 2023) [2025] KEELC 6477 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a land appeal because the Diocese never got court permission to appeal before filing it.
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 appeal is competent in the absence of leave of the court to file it
- 2.Whether the Miscellaneous Application E028 of 2023 was res judicata and an abuse of court process
- 3.Whether the Magistrate acted without jurisdiction in upholding the ex parte orders of 11th October 2023
Key legal issues
#Competency of the appeal for want of leave
The appeal was from discretionary orders not appealable as of right under Order 43 rule 1; leave was required and not obtained; the appeal was incompetent and was struck out
The court examined Section 75 CPA and Order 43 CPR and found that the orders appealed from (refusal to set aside, stay and strike out) fell under sections 1A, 1B and 3A CPA and were discretionary. Orders under Order 22 rule 22 are excluded from orders appealable as of right, and the Limitation of Actions Act provisions cited do not confer a right of appeal. Leave was therefore mandatory.
Legal principles established
#- An appeal from an order not listed in Order 43 rule 1 of the Civil Procedure Rules lies only with leave of court, and an appeal filed without such leave is incompetent
- Where a court finds it is without jurisdiction it must down its tools, and an objection going to jurisdiction must be addressed whenever raised
Court orders
#- 1.The appeal is struck out entirely
- 2.Each party shall bear their own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Malindi
- Malindi CM Miscellaneous Application E028 of 2023
- Jurisdiction invoked
- Sections 75 of the Civil Procedure Act and Order 43 rule 1 of the Civil Procedure Rules 2010 (appeals from orders)
Relief refused
#Setting aside and reversal of the ruling of Honourable James N. Mwaniki delivered on 6th December 2023 and substitution with an order allowing the notice of motion dated 16th October 2023
The appeal was incompetent for want of leave of court, which was required but never applied for or obtained before filing
Striking out of Chief Magistrate's Court Misc App No. E028 of 2023 with costs and declaration that the orders of 11th October 2023 are null and void
The appeal having been struck out, none of the reliefs sought could be granted
Costs
Each party shall bear their own costs of the appeal, the objection having been raised late in the day
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.
the issue goes to the jurisdiction of court and must be dealt with now that it has been drawn to the attention of the court, for if a court finds that it is without jurisdiction, it must down its tools in the matter.
In the circumstances, this court is of the view that leave of court to file the present appeal was needed but it was not applied for or obtained prior to its filing and that the appeal is thus incompetent.
I therefore strike out the said appeal entirely. As the objection was raised rather late in the day, I order that each party shall bear their own costs of the appeal.
Issues in the judgment
#The memorandum of appeal and relief prayers refer inconsistently to the same parcels as Kilifi/Jimba/472, 474 and 478 in one passage and 472, 474 and 480 in another
The appellant's name is never stated in full; the judgment refers to 'the appellant parent' and identifies it as registered proprietor of subdivisions, while the respondents' submissions mention the Catholic Diocese context only implicitly
Ground (f) of the appellant's application refers to 'Malindi CMCC Number 43 Of 2006' whereas the decree elsewhere is described as issued in Malindi CMCC 42 of 2006
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catholic Diocese of Malindi Registered Trustees v Mlewa & 3 others (Environment and Land Appeal E029 of 2023) [2025] KEELC 6477 (KLR)", Case Analysis (2025). Malindi ELC Appeal (from Malindi CM Misc App E028 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6477/eng@2025-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.