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ELCDismissedAppeal from MC ELC No. E159 of 2019, Mombasa (case number of this appeal not stated in judgment)

Trustees Anglican Church of Kenya & 6 others v Kafuta & 7 others (Environment and Land Appeal E069 of 2025) [2026] KEELC 1908 (KLR)

Environment and Land Court of Kenya
12 March 2026
2,087 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Ombwayo J) dealt with the Appellants' Notice of Motion dated 8th October 2025, seeking stay of execution of a judgment and decree delivered on 14th August 2025 by Chief Magistrate JB Kalo in MC ELC No. E159 of 2019, leave to file an appeal out of time, preservation orders, and transfer of the matter to Voi ELC Court, together with the Respondents' preliminary objection dated 24th October 2025. The Respondents argued that no appeal had been filed within 30 days under Section 75G of the Civil Procedure Act, that the appeal was incompetent without leave, and that the application was an abuse of process. The Appellants, through the affidavit of the 3rd Appellant Kennedy Mwandigha Machila, attributed the delay to their previous advocate's failure to update them, asserting they learned of the judgment only upon being served with the decree. The court framed two issues: the merits of the preliminary objection and of the extension of time application. On the first, applying the Supreme Court's decision in IEBC v Cheperenger and the EACJ decision in the Tanzania AG v ANAW case, the court held that whether Section 75G was breached required computation of time, a factual issue unsuitable for a preliminary objection, and dismissed it. On the second, applying the Salat principles, the court found the delay of nearly two months inordinate and unexplained, noting the applicants never demonstrated they sought information about the judgment from their advocate. The Notice of Motion was struck out, with each party bearing their own costs on both the objection and the application. No stay, extension of time, preservation orders or transfer to Voi were 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 dated 24th October, 2025 is merited?
  2. 2.Whether the Application for extension of time to file an appeal out of time is merited?

Key legal issues

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01

Whether the preliminary objection offended Section 75G of the Civil Procedure Act

Holding

The preliminary objection failed because determining breach of Section 75G requires computation of time, a factual matter not fit for a preliminary objection

Reasoning

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.

p. 4
02

Whether extension of time to file the appeal out of time should be granted

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Respondents' Preliminary Objection dated 24th October, 2025 is dismissed, with each party bearing their own costs
  2. 2.The Appellants' Notice of Motion application dated 8th October, 2025 is struck out, with each party bearing their own costs

The bench

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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

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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

p. 5

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

p. 5

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

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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.

The Respondents Preliminary Objection dated 24th October, 2025 is hereby dismissed. Each party shall bear their own costs.
p. 5Final orders - preliminary objection
The Appellants Notice of Motion application dated 8th October, 2025 is hereby struck out. Each party shall bear their own costs.
p. 5Final orders - application struck out
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.
p. 5Extension of time - inordinate and unexplained delay
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.
p. 4Preliminary objection - must be 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.
p. 4Abuse of preliminary objections (adopted from Supreme Court)

Issues in the judgment

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minor

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'

minor

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

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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, "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.