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ELCStruck OutKapsabet ELC Appeal No. E004 of 2025 (Notice of Motion dated 21st May 2025)

Ngala (Suing as the Administratix of the Estate of David Bichii Ngala (Deceased)) v Lelei (Environment and Land Miscellaneous Case E019 of 2024) [2025] KEELC 8416 (KLR)

Environment and Land Court
2 December 2025
1,006 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out an estate's appeal attempt because permission to appeal was never first obtained from the original court.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kapsabet (Ongondo J) on a Notice of Motion dated 21st May 2025 by the applicant, the Administratrix of the Estate of the late David Bichii Ngala. She sought leave to appeal out of time against a ruling of the Magistrate's Court delivered on 20th September 2024 in Kabiyet PMCC ELC No. E007 of 2024, an order that the Notice of Appeal filed on 21/05/2025 together with the Memorandum and record of appeal in Kapsabet ELC Appeal No. E004 of 2025 be deemed properly filed, and a stay of further proceedings in the trial suit pending the appeal. The respondent opposed through a preliminary objection dated 11th August 2025, contending that the application offended Order 43(1), (2) and (3) of the Civil Procedure Rules, which requires an application for leave to appeal under section 75 of the Civil Procedure Act to be made in the first instance to the court that made the order sought to be appealed from. Counsel relied on Mbaya v Kamau, Salat v IEBC and Boit v Kumin. The court held that leave is a fundamental jurisdictional hurdle; none was sought or obtained from the court of first instance, and the delay of about eight months aggravated the defect. Applying the principle that lack of jurisdiction renders decisions void rather than voidable, the court upheld the preliminary objection and struck out the application dated 21st May 2025 with no orders as to costs. The application was disposed of entirely; no relief was granted.

Questions the Court framed

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

  1. 1.Whether the preliminary objection has merit
  2. 2.Whether this Court has jurisdiction to grant leave to appeal out of time where leave was not first sought from the court making the order appealed from
  3. 3.What orders should issue in respect of the Notice of Motion dated 21st May 2025

Key legal issues

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01

Whether an application for leave to appeal out of time can be entertained where leave was never sought from the court that made the order

Holding

No - leave is a fundamental jurisdictional hurdle and must first be obtained from the court of first instance; absent it, the ELC has no jurisdiction over the application

Reasoning

Order 43(3) of the Civil Procedure Rules requires an application for leave under section 75 of the Civil Procedure Act to be made in the first instance to the court making the order sought to be appealed from, orally at the time or within fourteen days. The ruling appealed from was delivered on 20th September 2024, yet leave was never sought there and the application came about eight months later. Citing Boit v Kumin, the court held that leave is a fundamental jurisdictional hurdle; without it the court is devoid of jurisdiction, which renders its decisions void rather than voidable.

p. 3
02

Whether the preliminary objection on jurisdiction is sustainable

Holding

Yes - the preliminary objection was upheld

Reasoning

The objection was founded on Order 43(1), (2) and (3) of the Civil Procedure Rules, which require leave of the court from which the order was made. Since no such leave was obtained and the delay of about eight months did not cure the jurisdictional defect, the court found the objection sustainable and struck out the application with no orders as to costs.

p. 3

Legal principles established

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  • Leave to appeal from interlocutory orders must in the first instance be sought from the court making the order; without it the appellate court lacks jurisdiction
  • Lack of jurisdiction renders a court's decision void, not merely voidable

Court orders

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  1. 1.The preliminary objection dated 11th August 2025 is upheld
  2. 2.The application dated 21st May 2025 is struck out with no orders as to costs

The bench

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

majority

Wrote the judgment

On appeal from
Kabiyet Principal Magistrate's Court
Kabiyet PMCC ELC No. E007 of 2024
Jurisdiction invoked
Sections 75, 79G and 95 of the Civil Procedure Act (Cap. 21) and Order 43 of the Civil Procedure Rules, 2010

Relief refused

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Leave to appeal out of time and deemed filing of the Notice of Appeal, Memorandum and record of appeal

Leave from the court of first instance was not obtained, rendering the court devoid of jurisdiction over the application

p. 3

Stay of further proceedings in Kabiyat PMCC ELC No. E007 of 2024

It was consequential upon the grant of leave, which was refused

Costs

No orders as to costs - the application dated 21st May 2025 was struck out with no orders as to costs

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 premises, I find that leave from the Court of first instance was not obtained and therefore, this court is devoid of jurisdiction over the application.
p. 3Jurisdiction - leave to appeal
A fortiori, the application dated 21st May 2025 is hereby struck out with no orders as to costs.
p. 3Final orders - striking out
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party in the discretion of the court.
p. 2Extension of time principles (as cited)

Issues in the judgment

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minor

The preliminary objection as reproduced states the application 'ofiends' Order 43(1), (2) and (3), apparently a typographical error for 'offends'

minor

The applicant sought leave to appeal a ruling delivered 20th September 2024, yet the Notice of Appeal is stated as filed before the Trial Court on 21/05/2025 and the record refers to an 'ELC Appeal of 2025' filed in the same year as the application

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, "Ngala (Suing as the Administratix of the Estate of David Bichii Ngala (Deceased)) v Lelei (Environment and Land Miscellaneous Case E019 of 2024) [2025] KEELC 8416 (KLR)", Case Analysis (2025). Kapsabet ELC Appeal No. E004 of 2025 (Notice of Motion dated 21st May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8416/eng@2025-12-02

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