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ELCStruck OutNotice of motion dated 3/10/2025 (Chuka ELC)

Julius & another v Ngaine & another (Environment and Land Miscellaneous Application E018 of 2025) [2025] KEELC 7481 (KLR)

Environment and Land Court
28 October 2025
BEB M Eboso
1,601 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The court struck out the applicants' attempt to revive a stalled land appeal because their paperwork was incomplete and their affidavits were improperly signed.

What this practically means

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Executive summary

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The applicants, Peter Mutugi Julius and Eliphas Mbae Nthiiri, moved the Environment and Land Court at Chuka by notice of motion dated 3/10/2025 seeking enlargement of time to lodge an appeal against a ruling of the Principal Magistrate's Court at Chuka (Hon H. Mwendwa) dated 30/5/2023, which allowed a preliminary objection and struck out their adverse possession suit, and an order staying execution of that ruling. They attributed the delay of about two years and five months to the lower court registry's failure to supply typed proceedings and the ruling, and to one applicant's health and financial difficulties. The respondent, Humphrey Mutegi Ngaine, opposed, arguing the application lacked a draft memorandum of appeal and a copy of the impugned ruling, and that the supporting affidavits were not commissioned by a commissioner for oaths; he further contended the delay was inordinate and unexplained. The court framed two issues: whether the application met the criteria for extension of time and for stay of execution. Applying Section 16A of the Environment and Land Court Act, Section 79G of the Civil Procedure Act, and the principles in Salat, Mukora Mwangi and County Government of Murang'a v Njoroge, the court found the absence of a draft memorandum of appeal and the impugned ruling fatal, as it could not assess arguability. The affidavits, bearing only a law firm's rubber stamp, were also fatally defective. The application was struck out without consideration of the merits, with costs to the applicants.

Questions the Court framed

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

  1. 1.Whether the application meets the criteria for enlargement of time for lodging an appeal in this court
  2. 2.Whether the application meets the criteria for granting an order of stay of execution pending disposal of an appeal by this court

Key legal issues

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01

Criteria for enlargement of time for lodging an appeal

Holding

The criteria in Salat and Mukora Mwangi were not satisfied because the applicants exhibited no draft memorandum of appeal or impugned ruling

Reasoning

The limitation period for appeals to the ELC is 30 days under Section 16A of the Environment and Land Court Act and Section 79G of the Civil Procedure Act, extendable on sufficient cause. Guided by Salat and Mukora Mwangi, the court must consider length and reason for delay, arguability and prejudice. Without a draft appeal or the impugned decision, the court cannot evaluate whether the intended appeal is arguable, a fatal omission that precludes consideration of the merits.

p. 3
02

Validity of affidavits supporting the application

Holding

Affidavits stamped by a law firm rather than commissioned before a commissioner for oaths are fatally defective, rendering the application defective

Reasoning

The supporting and supplementary affidavits bore only the rubber stamp of Igweta Muriithi & Co Advocates instead of attestation by a duly commissioned commissioner for oaths. The court treated this as a fatal defect justifying striking out the application without engaging the merits of the extension and stay pleas.

p. 3

Legal principles established

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  • An application for extension of time must be supported by a draft memorandum of appeal and a copy of the impugned decision, without which the court cannot assess arguability of the intended appeal
  • Affidavits must be commissioned by a commissioner for oaths; affidavits bearing only a law firm's rubber stamp are fatally defective

Court orders

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  1. 1.The application dated 3/10/2025 is struck out for being fatally defective
  2. 2.The applicants shall bear costs of the suit

The bench

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

BE
majority

Wrote the judgment

Jurisdiction invoked
Section 16A of the Environment and Land Court Act and Section 79G of the Civil Procedure Act (discretion to enlarge time and stay execution)

Relief refused

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Enlargement of time to lodge an appeal against the ruling of 30/5/2023

Application fatally defective - no draft memorandum of appeal, no copy of the impugned ruling, and affidavits not sworn before a commissioner for oaths

p. 4

Stay of execution of the ruling of 30/5/2023

Struck out with the application without consideration of the merits

p. 4

Costs

The applicants shall bear costs of the suit.

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.

In the end, the application dated 3/10/2025 is struck out for being fatally defective. The applicants shall bear costs of the suit.
p. 4Final orders - striking out
In the circumstances, the court finds that the application dated 3/10/2025 is fatally defective. The same stands to be struck out without venturing into the merits of the plea for enlargement of time.
p. 4Defective extension-of-time application
The afidavits bear the rubber stamp of a law firm (Igweta Muriithi & Co Advocates) as opposed to a duly commissioned commissioner for oaths. The afidavits are fatally defective.
p. 3Commissioning of affidavits

Issues in the judgment

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minor

Judgment states it was delivered on 28th October 2025 while earlier text refers to submissions on 27/10/2025 and the ruling under challenge is described as 'dated 30/5/2023' in places and 'rendered on 30/5/2023' elsewhere; minor internal inconsistency in dates

minor

Costs described as costs 'of the suit' although the court determined an application, not a suit

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, "Julius & another v Ngaine & another (Environment and Land Miscellaneous Application E018 of 2025) [2025] KEELC 7481 (KLR)", Case Analysis (2025). Notice of motion dated 3/10/2025 (Chuka ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7481/eng@2025-10-28

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