Gichuru v Wahome & another (Environment and Land Appeal E042 of 2024) [2025] KEELC 8514 (KLR)
The bottom line
#Kenya's High Court struck out an appeal filed late, confirming that extension of time is a discretionary favour, not a right, and delay must be explained promptly.
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 Appellant has made a case for extension of time within which to file an Appeal or if the Respondents' Preliminary Objection is merited
Key legal issues
#Whether the Appellant deserved extension of time to file the appeal out of time
No; the application was unmerited and the Preliminary Objection was allowed, resulting in the appeal being struck out
The impugned judgment was delivered on 26th January 2024, not 2023 as pleaded. The appeal filed on 22nd March 2024 was outside the thirty-day period under section 79G. The Appellant blamed the Executive Officer for a wrongly dated certified copy but only raised this after the Preliminary Objection was filed, showing lack of vigilance. Applying the Salat and Edith Koine principles, the delay was unexplained and the remedy sought amounted to asking the court to remedy an illegality.
Whether the Respondents' Preliminary Objection that the appeal was fatally defective was merited
Yes; the appeal was time-barred, having been filed out of time and without leave
The Respondents argued statutory timelines are mandatory and non-compliance is fatal. The court confirmed the judgment date was 26th January 2024, meaning the appeal filed on 22nd March 2024 exceeded the thirty-day window with no leave obtained. The objection raised a pure point of law on the face of the record and was upheld, with the appeal struck out and costs awarded to the Respondents.
Legal principles established
#- An appeal must be filed within thirty days of the decree under section 79G of the Civil Procedure Act, unless the appellant shows good and sufficient cause for out-of-time filing
- Extension of time is an equitable remedy available only to a deserving party, on a case-by-case basis, considering delay, reasons, prejudice and promptness
- A litigant must be vigilant in filing an appeal and cannot blame third parties for a defective or wrongly dated judgment he had notice of
Court orders
#- 1.The Notice of Motion dated 8th April 2025 seeking extension of time is dismissed
- 2.The Respondents' Notice of Preliminary Objection dated 7th May 2024 is allowed
- 3.The Appeal is struck out
- 4.Costs to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrates Court
- Not stated
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (appeal from subordinate court to the High Court)
Relief refused
#Leave to file the Appeal out of time and deeming of the Memorandum of Appeal dated 22nd March 2024 as properly filed
The Appellant filed the appeal out of time against a wrongly dated judgment and only sought to blame the Executive Officer when the Preliminary Objection was raised; he ought to have been vigilant and should have withdrawn the appeal before applying
Costs
The Appeal is struck out with costs (costs awarded to the Respondents)
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.
I find the instant Notice of Motion Application unmerited and will dismiss it. I find the instant Notice of Preliminary Objection merited and will allow it and proceed to strike out the instant Appeal with costs.
the Appellant's action of now seeking to extend time after filing an Appeal out of time with a wrongly dated judgement is tantamount to moving this Court to remedy an illegality
Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court
Issues in the judgment
#The judgment records inconsistent dates for the trial court's judgment: the application is said to seek stay of a judgment delivered on 26th January 2023, while the Appellant's affidavit and the court's finding state 26th January 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichuru v Wahome & another (Environment and Land Appeal E042 of 2024) [2025] KEELC 8514 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8514/eng@2025-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.