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ELCStruck OutMiscellaneous application dated 19/7/2025 (also referred to as dated 10/7/2025)

M’Minyori v Mutiga (Environment and Land Miscellaneous Case E034 of 2025) [2025] KEELC 7955 (KLR)

High Court of Kenya (court not expressly named in the judgment; inferred from coram 'B M EBOSO [MR] JUDGE')
10 November 2025
1,078 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court struck out a late-appeal application because the applicant failed to attach a draft appeal and the decision being challenged.

What this practically means

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Executive summary

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This ruling of the High Court at Meru (B M Eboso J) determines a notice of motion dated 19/7/2025 by Salesio Miriti M'Minyori, the applicant, seeking extension of time to file an appeal out of time and that costs be in the cause. The court noted that the applicant failed to specify in the prayer the particulars of the decision impugned, did not exhibit a copy of the impugned ruling despite filing two supporting affidavits, and did not annex a draft memorandum of appeal or any other material projecting the proposed grounds of appeal. The court set out the criteria for enlarging time from the Supreme Court's decision in Salat v IEBC and the Court of Appeal's factors in Mukora Mwangi v Charles Gichira, and relied on County Government of Murang'a v Njoroge, where Laibuta JA held that absence of a draft memorandum of appeal is a fatal defect that is not cured by an explained delay or absence of prejudice. Holding that without the impugned decision and draft memorandum it had no basis to assess whether the intended appeal was arguable, the court struck out the application as fatally defective. Applying Section 27 of the Civil Procedure Act, that costs follow the event, the court ordered the applicant to bear the costs of the suit. The ruling underscores that annexation of the intended memorandum of appeal is indispensable in applications for extension of time.

Questions the Court framed

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

  1. 1.Whether the court should extend time to file an appeal out of time
  2. 2.Whether the application is fatally defective for failure to exhibit the impugned decision and a draft memorandum of appeal
  3. 3.Who should bear costs of the application

Key legal issues

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01

Whether extension of time to appeal can be granted where the impugned decision and draft memorandum of appeal are not exhibited

Holding

The application must be struck out as fatally defective because the court cannot evaluate arguability of the intended appeal without the impugned decision and draft memorandum of appeal

Reasoning

The court adopted the Salat criteria and the Mukora Mwangi factors for extension of time. It found that the applicant, despite two supporting affidavits, failed to exhibit the impugned ruling or a draft memorandum of appeal or any material projecting the proposed grounds. Without these, the court has no basis to assess whether the appeal is arguable. Following County Government of Murang'a v Njoroge, this omission is fatal even if delay is explained and no prejudice is caused.

p. 2
02

Costs of the application

Holding

Costs follow the event under Section 27 of the Civil Procedure Act; the applicant bears the costs

Reasoning

The court applied the general principle in Section 27 of the Civil Procedure Act that costs follow the event, found no proper grounds to depart from it, and ordered the applicant to bear the costs of the miscellaneous application.

p. 3

Legal principles established

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  • A party seeking extension of time to appeal must annex the draft intended memorandum of appeal; without it the court cannot assess whether the intended appeal is arguable
  • Extension of time is an equitable, discretionary remedy available only to a deserving party, and the applicant bears the burden of laying a basis for it

Court orders

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  1. 1.The miscellaneous application dated 10/7/2025 is struck out on the ground that, absent a copy of the impugned decision and a draft memorandum of appeal or other material projecting the proposed grounds of appeal, the court lacks the basis to consider the plea for enlargement of time
  2. 2.The applicant will bear costs of the suit

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Inherent jurisdiction to enlarge time under applicable procedural law (no specific constitutional/statutory provision invoked for the extension jurisdiction; Section 27 Civil Procedure Act invoked on costs)

Relief refused

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Extension of time to file appeal out of time

The applicant failed to exhibit the impugned ruling and a draft memorandum of appeal or other material projecting the proposed grounds of appeal, leaving the court with no basis to evaluate whether there are arguable grounds of appeal

p. 3

Costs

The applicant will bear costs of the suit (costs following the event under Section 27 of the Civil Procedure Act)

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 miscellaneous application dated 10/7/2025 is struck out on the ground that, in the absence of a copy of the impugned decision and in the absence of the draft memorandum of appeal or any other material projecting the proposed grounds of appeal, this court lacks the basis upon which to consider the plea for enlargement of time for lodging an appeal.
p. 3Final orders - striking out of the extension-of-time application
The applicant will bear costs of the suit.
p. 3Costs order
In the absence of the draft memorandum of appeal containing the intended grounds of appeal, and in the absence of any other material projecting the proposed grounds of appeal, this court has no proper basis upon which to evaluate the question as to whether the applicant has arguable grounds of appeal.
p. 2Fatal omission of draft memorandum of appeal
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. 1Nature of extension of time

Issues in the judgment

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minor

Internal inconsistency in the date of the application: the motion is introduced as dated 19/7/2025 but the operative orders and striking-out refer to an application dated 10/7/2025

minor

The prayer for extension of time does not specify the decision in relation to which enlargement is sought, and the respondent is never identified or joined by name in the judgment

minor

The court and case number are not stated on the face of the judgment text provided; the court is inferred only from the coram signature block

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, "M’Minyori v Mutiga (Environment and Land Miscellaneous Case E034 of 2025) [2025] KEELC 7955 (KLR)", Case Analysis (2025). Miscellaneous application dated 19/7/2025 (also referred to as dated 10/7/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7955/eng@2025-11-10

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