Trustees Anglican Church of Kenya & 6 others v Kafuta & 7 others (Environment and Land Appeal E069 of 2025) [2026] KEELC 1908 (KLR)
The bottom line
#The Environment and Land Court in Mombasa struck out a delayed appeal application because the appellants couldn't explain nearly two months of silence after judgment.
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 Preliminary Objection dated 24th October, 2025 is merited?
- 2.Whether the Application for extension of time to file an appeal out of time is merited?
Key legal issues
#Whether the preliminary objection offended Section 75G of the Civil Procedure Act
The preliminary objection failed because determining breach of Section 75G requires computation of time, a factual matter not fit for a preliminary objection
Applying the Supreme Court's guidance in IEBC v Cheperenger and the EACJ approach in the Tanzania AG v ANAW case, the court held that a preliminary objection must rest on a settled, crisp point of law applicable to undisputed facts. Computation of whether the appeal was filed within 30 days, and the cause of the delay, requires factual inquiry; hence the objection could not succeed as a pure point of law.
Whether extension of time to file the appeal out of time should be granted
Extension of time was refused: the delay from 14th August to 8th October 2025 was inordinate and the applicants failed to lay a sufficient basis for the delay
Applying the Salat principles, the court noted extension of time is an equitable, discretionary remedy requiring a reasonable explanation for delay. The draft memorandum of appeal was attached, but the application came nearly two months after judgment; the applicants did not show they made any inquiry of their previous advocate about the judgment, and the delay was therefore unexplained and inordinate.
Legal principles established
#- Extension of time is not a right but an equitable remedy available to a deserving party at the discretion of the court
- A true preliminary objection must rest on a pure point of law; issues requiring factual inquiry cannot be raised as preliminary objections
Court orders
#- 1.The Respondents' Preliminary Objection dated 24th October, 2025 is dismissed, with each party bearing their own costs
- 2.The Appellants' Notice of Motion application dated 8th October, 2025 is struck out, with each party bearing their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Mombasa Magistrate's Court (Chief Magistrate's Court)
- MC ELC No. E159 of 2019
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts (Section 16A Environment and Land Court Act; Section 75G Civil Procedure Act cited by the parties)
Relief refused
#Stay of execution of the judgment and decree of 14th August 2025 pending the intended appeal
The application seeking extension of time and stay lacked merit due to inordinate and unexplained delay
Leave to file and serve a Memorandum of Appeal and Record of Appeal out of time
The delay of nearly two months was inordinate and the applicants did not demonstrate they followed up on the judgment with their previous advocate
Preservation orders and transfer of the matter to Voi ELC Court
These prayers fell with the striking out of the entire Notice of Motion
Costs
Each party shall bear their own costs on both the preliminary objection (dismissed) and the Notice of Motion (struck out)
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.
The Respondents Preliminary Objection dated 24th October, 2025 is hereby dismissed. Each party shall bear their own costs.
The Appellants Notice of Motion application dated 8th October, 2025 is hereby struck out. Each party shall bear their own costs.
This is inordinate delay. The court is not satisfied with the Appellant’s reasons for the delay as the applicant has not demonstrated that he sought any information about the judgment from his advocate.
In this case an analysis of whether the Appellants ofiended the provisions of Section 75 G of the Civil Procedure Act will involve computation of time which is a factual issue and not a pure point of law.
It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.
Issues in the judgment
#The judgment does not state the case number or full party names of the appeal before the ELC; parties are referred to only as 'Appellants' and 'Respondents'
Judgment is dated and signed '12TH DAY OF MARCH, 2026' while the application and preliminary objection are dated October 2025; the respondent submissions are dated 10th December, 2025, consistent with 2026 delivery but the chronology of filing in 2025 should be verified against the court record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Trustees Anglican Church of Kenya & 6 others v Kafuta & 7 others (Environment and Land Appeal E069 of 2025) [2026] KEELC 1908 (KLR)", Case Analysis (2026). Appeal from MC ELC No. E159 of 2019, Mombasa (case number of this appeal not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1908/eng@2026-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.