Tabouillot v Mbaabu & another (Environment and Land Case E057 of 2023) [2026] KEELC 448 (KLR)
The bottom line
#Kenya's Environment and Land Court in Malindi ruled that a leave-to-appeal application missing a supporting affidavit is not automatically dead, and allowed the appeal to proceed.
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 application for leave to appeal is fatally defective for want of a supporting affidavit as required by Order 51 Rule 4 CPR
- 2.Whether the applicant has demonstrated arguable or meritorious grounds warranting leave to appeal
- 3.Whether the court lacks jurisdiction over matters relating to counsel's alleged illegality or ineligibility to practise
- 4.Whether any extension of time is required given the filing of a Notice of Appeal
Key legal issues
#Whether absence of a supporting affidavit invalidates the leave application under Order 51 Rule 4 CPR
The omission is not fatal where the application speaks on its face and the ruling was delivered electronically, leaving no opportunity for an oral application for leave at delivery
The court reasoned that electronic delivery of the ruling deprived counsel of the chance to apply for leave orally at the time of delivery. Since no affidavit is required for an oral application for leave, the court found the omission excusable where the grounds appear on the face of the application, and declined to strike out the application on that basis.
Whether the applicant demonstrated grounds warranting leave to appeal
Leave was granted; the applicant's discontent regarding representation should be ventilated at a higher level, and granting leave causes no harm to the respondent
The court held that issues of representation in litigation are peripheral to the court's jurisdiction, but the applicant's grievance deserved ventilation on appeal. Granting leave would not delay or prejudice the respondent in the main suit, and no good ground was shown in the plaintiff's reply to curtail the applicant's right of appeal.
Whether the court lacks jurisdiction over matters concerning counsel's alleged illegality or ineligibility to practise
The court noted the objection but did not rule definitively; it found representation issues peripheral to its jurisdiction while still permitting the appeal on the point
The plaintiff argued that matters of counsel's alleged illegality or ineligibility to practise fall under the Advocates Disciplinary Tribunal and the Law Society of Kenya. The court observed that representation in litigation is peripheral to matters subject to its jurisdiction but found the applicant's discontent should be ventilated at a higher level, effectively deferring the substantive question to the Court of Appeal.
Legal principles established
#- Where a ruling is delivered electronically, counsel may not have had opportunity to apply for leave orally at delivery, and the omission of a supporting affidavit where the application speaks on its face is not fatal
- On an oral application for leave, no affidavit is required
Court orders
#- 1.Leave to appeal to the Court of Appeal granted in terms of prayer (a) of the application dated 26th June 2025
- 2.No extension of time granted, the Notice of Appeal having been filed timeously and prayer (b) seeking no extension
- 3.Suit to be mentioned on 11/3/2026 for further directions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the trial court to grant leave to appeal under the Civil Procedure Rules (Order 51 referenced; appeal to the Court of Appeal)
Relief refused
#Prayer (b) - extension of time
A Notice of Appeal had already been filed timeously within 14 days of the impugned ruling, so there was nothing to extend
Costs
No costs order made in the judgment; costs not addressed
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 therefore grant the application in terms of prayer number (a) thereof which seeks leave to appeal.
As a Notice of Appeal had been filed timeously within 14 days of the impugned ruling, there is nothing to extend and the prayer number (b) does not in any event seek any extension.
this court does not find the omission, where the application speaks on its face, to be fatal to it
I find no good ground in the plaintifi's reply upon which the applicant's right to appeal may be curtailed.
Issues in the judgment
#The judgment excerpt does not state the case title, case number or neutral citation; parties are referred to only as 'plaintiff' and '1st defendant'
Recurring spelling of 'plaintiff' as 'plaintifi' and 'affidavit' as 'afidavit' in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tabouillot v Mbaabu & another (Environment and Land Case E057 of 2023) [2026] KEELC 448 (KLR)", Case Analysis (2026). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/448/eng@2026-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.