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ELCDismissedNot stated in judgment

Sendi & 2 others v Machera (Environment and Land Case 566 of 2017) [2025] KEELC 8032 (KLR)

Environment and Land Court
20 November 2025
INDR. IUR NYAGAKA
2,101 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed an attempt to extend time to appeal because the applicants cited ruling dates that did not match the actual court record.

What this practically means

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Executive summary

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The applicants filed a Notice of Motion dated 7th April 2025 under a Certificate of Urgency seeking enlargement of time and leave to appeal two rulings of the Environment and Land Court, which they identified as having been delivered on 4th November 2024 and 23rd March 2025, and asking that an annexed draft Notice of Appeal be deemed filed. Counsel attributed the delay to an associate who inadvertently forgot to institute the appeal. The respondent, Sofia Mogosi Giboma, administrator of the estate of the deceased defendant Robi Mwita Machera, opposed the application. She argued that the suit against the deceased had abated, that the applicants were seeking to appeal a non-existent suit, that no ruling was delivered on 4th November 2024, and that the time for appealing had lapsed without explanation. No submissions were filed; the court, relying on the Moi v Muriithi authority, determined the application on the merits. Framing two issues - the merit of the application and costs - the court reviewed its record and found the actual rulings were delivered on 19th November 2024 and 25th March 2025, not on the dates pleaded by the applicants. Applying the Salat principles on extension of time and the rule that parties are bound by their pleadings, it held that prayers 2, 3 and 4 lacked merit since no ruling existed as dated and leave cannot be granted to appeal a non-existent decision. Applying section 27 of the Civil Procedure Act and the Jasbir Singh Rai costs principle, the court dismissed the application with costs to the successful administrator.

Questions the Court framed

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

  1. 1.Whether the applicants' application is merited
  2. 2.Who should bear the costs of the application

Key legal issues

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01

Whether time should be enlarged and leave granted to appeal out of time

Holding

Application dismissed; the rulings the applicants sought to appeal do not exist on the record as dated

Reasoning

The court applied the Salat criteria for extension of time but found, on a careful review of the record, that no ruling was delivered on 4th November 2024 or on 23rd March 2025 as asserted by the applicants. The actual rulings were delivered on 19th November 2024 and 25th March 2025. Parties being bound by their pleadings, prayers to appeal non-existent rulings lacked merit, and the consequential prayer to deem the Notice of Appeal filed also failed.

p. 4
02

Who should bear the costs of the application

Holding

The applicants, having lost, bear the costs

Reasoning

Section 27 of the Civil Procedure Act gives courts discretion over costs, with the general rule that costs follow the event. Since the applicants did not succeed in any of their prayers, they were ordered to pay the costs of the application, costs serving to compensate the successful party rather than to penalize the losing one.

p. 5

Legal principles established

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  • Parties are bound by their pleadings; a party cannot seek relief in respect of a decision that does not exist on the court record
  • Courts may determine applications on merits even where no submissions are filed
  • The basic rule on costs is that costs follow the event

Court orders

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  1. 1.The applicants' application dated 7th April 2025 is dismissed
  2. 2.The applicants shall bear the costs of the application

The bench

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

IN
majority

Wrote the judgment

Jurisdiction invoked
Inherent discretion to enlarge time; Certificate of Urgency application (no specific constitutional/statutory provision invoked)

Relief refused

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Enlargement of time to appeal a ruling allegedly delivered on 4th November 2024 (prayer 2)

No such ruling exists in the court record; the ruling was actually delivered on 19th November 2024

p. 4

Leave to appeal against a ruling allegedly delivered on 23rd March 2025 (prayer 3)

The court did not deliver a ruling on that date; it cannot grant leave to appeal a non-existent ruling

p. 5

Deeming the draft Notice of Appeal as properly filed (prayer 4)

It is anchored on prayers 2 and 3 and relates to a non-existent ruling

p. 5

Costs

The Applicants, having not succeeded, shall bear the costs of the instant application.

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.

My conclusion is that the ruling that the applicants allegedly intend to appeal in prayer 2 of their application is non-existent as this matter was never before this court on 4th November 2024.
p. 4Non-existence of the ruling sought to be appealed
this court cannot grant leave to appeal against a non-existent ruling
p. 5Leave to appeal
The Applicants having not succeeded shall bear the costs of the instant application.
p. 5Costs - final orders

Issues in the judgment

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minor

Judgment contains inconsistent dates for the ruling complained of: the application describes a ruling 'delivered on 4/11/2024' and a ruling of '23/3/2025', while the record shows rulings of 19th November 2024 and 25th March 2025, and the administrator depones the court 'delivered its ruling on 25th March 2025' whereas the court's own narrative says 'The court delivered its ruling on the said date and not on 23rd March 2025'

minor

Prayer 2 refers to extending time to appeal a ruling 'delivered on 4/11/2024' but grounds describe a ruling of 23rd March 2025 - internally inconsistent relief

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, "Sendi & 2 others v Machera (Environment and Land Case 566 of 2017) [2025] KEELC 8032 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8032/eng@2025-11-20

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