Alaibua & another v M’Luruti & another (Environment and Land Miscellaneous Case E014 of 2026) [2026] KEELC 2973 (KLR)
The bottom line
#The Environment and Land Court struck out an appeal application because leave was never first sought from the magistrate's court within fourteen days of the ruling.
What this practically means
#Executive summary
#Key legal issues
#Competency of the application for leave to appeal
The application was incompetent, premature and misconceived because leave was never sought before the trial court as mandatorily required by Order 43 Rule 1(3)
Order 43 Rule 1(3) requires an application for leave to appeal to be made in the first instance to the court making the order, either orally at the time the order is made or within fourteen days. The word 'shall' is peremptory. The applicant neither applied for leave at the delivery of the ruling nor deposed in the supporting affidavit to having done so. Allegations that the trial magistrate failed to capture such an application were made from the bar without evidential foundation and were condemned as attempts to scandalize the judicial officer.
Stay of proceedings pending an intended appeal
The prayer for stay of proceedings was made in vacuum because no appeal existed; under Order 42 Rule 6(1) stay can only be sought within an existing appeal, and the Order 42 Rule 6(4) exception (Notice of Appeal to the Court of Appeal) did not apply
The court held that a stay of execution or of proceedings under Order 42 Rule 6(1) presupposes an appeal in existence. The applicant was itself seeking leave to appeal, which confirmed no appeal had been filed. Relying on Equity Bank Limited v Mbo West Link Limited, the court held the application could not be entertained in anticipation of an appeal, the only statutory exception being a Notice of Appeal to the Court of Appeal under Order 42 Rule 6(4), which was absent.
Evidentiary value of counsel's allegations against the trial magistrate
Counsel's claim that leave had been sought but not captured in the proceedings was devoid of probative value as it was made from the bar without affidavit support, and was meant to scandalize the judicial officer
The court noted that factual and evidential matters can only be brought before the court by affidavit evidence, save for matters of judicial notice under Sections 58, 59 and 60 of the Evidence Act. The supporting affidavit contained no deposition that leave had been sought in the lower court. The court characterized the unsubstantiated allegations against the trial magistrate as preposterous, intended to scandalize the judicial officer and besmirch her integrity, and cautioned that litigation must be conducted with decorum and deference.
Legal principles established
#- An application for leave to appeal under section 75 of the Civil Procedure Act must in the first instance be made to the court making the order sought to be appealed from, either orally at the time the order is made or within fourteen days from the date of such order; failure to do so deprives the applicant of the right to approach the superior court
- An application for stay of execution or stay of proceedings under Order 42 Rule 6(1) can only be made where there is an appeal in existence, and cannot be made in anticipation of an appeal save under Order 42 Rule 6(4) where there is a Notice of Appeal to the Court of Appeal
- Submissions made from the bar on evidentiary matters have no probative value and cannot take the place of affidavit evidence
Court orders
#- 1.The Application dated 10.03.2026 be and is hereby struck out
- 2.Costs of the Application be and are hereby awarded to the 1st Respondent only
- 3.The Costs in terms of clause (ii) shall be agreed upon; and in default be taxed in the conventional manner
- On appeal from
- Tigania Magistrate's Court
- ELC No. 2 of 2022
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 75 of the Civil Procedure Act; Order 42 Rule 6; Order 43 Rules 1, 2 and 3; Order 51 Rule 1 of the Civil Procedure Rules 2010; Articles 48, 50 and 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alaibua & another v M’Luruti & another (Environment and Land Miscellaneous Case E014 of 2026) [2026] KEELC 2973 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2973/eng@2026-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.