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ELCPartially AllowedNot stated in the excerpt provided· [2026] KEELC 448 (KLR)

Tabouillot v Mbaabu & another (Environment and Land Case E057 of 2023) [2026] KEELC 448 (KLR)

Environment and Land Court
3 February 2026
456 words in judgment
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The bottom line

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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

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Executive summary

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The 1st defendant in an ELC Malindi suit applied by notice of application dated 26th June 2025 for leave to appeal to the Court of Appeal against the court's ruling delivered on 13th June 2025, a Notice of Appeal having been filed on the same date. The plaintiff opposed the application through an affidavit dated 22nd October 2025 on three grounds: the application lacked a supporting affidavit contrary to Order 51 Rule 4 CPR; no arguable or meritorious grounds for leave were demonstrated; and the court lacked jurisdiction over matters concerning counsel's alleged illegality or ineligibility to practise, which fall under the Advocates Disciplinary Tribunal and the Law Society of Kenya. Both parties filed submissions. The court, per Mwangi Njoroge J, held that because the ruling was delivered electronically, counsel had no opportunity to apply for leave orally at delivery; since no affidavit is required for an oral application, the omission of a supporting affidavit, where the application speaks on its face, was not fatal. On merits, the court found the representation issue peripheral to its jurisdiction but held the applicant's discontent should be ventilated at a higher level, with no harm or delay to the respondent, and found no good ground to curtail the right of appeal. Leave to appeal was granted in terms of prayer (a). No extension of time was necessary as the Notice of Appeal was filed timeously and prayer (b) sought no extension. The suit was set for mention on 11th March 2026 for further directions. Judgment dated 3rd February 2026, Malindi.

Key legal issues

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01

Whether absence of a supporting affidavit invalidates the leave application under Order 51 Rule 4 CPR

Holding

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

Reasoning

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.

p. 2
02

Whether the applicant demonstrated grounds warranting leave to appeal

Holding

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

Reasoning

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.

p. 2
03

Whether the court lacks jurisdiction over matters concerning counsel's alleged illegality or ineligibility to practise

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Leave to appeal to the Court of Appeal granted in terms of prayer (a) of the application dated 26th June 2025
  2. 2.No extension of time granted, the Notice of Appeal having been filed timeously and prayer (b) seeking no extension
  3. 3.Suit to be mentioned on 11/3/2026 for further directions

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 4
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)

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, "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.