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ELCPartially AllowedKabarnet ELCLA No. E002 of 2024· [2026] KEELC 4913 (KLR)

Cherutich & another v Cherutich & another (Environment and Land Appeal E002 of 2024) [2026] KEELC 4913 (KLR)

Environment and Land Court, High Court of Kenya
29 July 2026
2,099 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land appeal filed 15 months late without permission, confirming that late appeals without leave are void.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kabarnet (Boaz N. Olao, J) on the respondents' Notice of Motion seeking striking out of the appellants' appeal. The underlying dispute concerned ownership of Plot 31A Tenges Trading Centre, decided in favour of the respondents (as plaintiffs) by Hon. Purity Koskey (SPM) in Kabarnet CMC ELC Case No. E001 of 2023 by judgment delivered on 16th November 2023. The appellants' counsel, instructed after time for appealing had expired, applied to the trial court on 5th February 2024 for leave to come on record, leave to file a notice of appeal out of time, and stay of execution. By a ruling delivered on 25th April 2024 the trial magistrate dismissed that motion, having declined the leave and stay prayers. Notwithstanding, the appellants filed a memorandum of appeal on 6th February 2025 challenging the judgment of 16th November 2023, some 15 months out of time. The respondents moved under Section 79G of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules to strike out the appeal as incompetent. The court held that no leave to appeal out of time had been granted - prayer 4 of the trial court motion was among those declined - and that, applying Salat v IEBC and County Executive of Kisumu, an appeal filed out of time without leave is a nullity. The court struck out the appeal and awarded costs to the respondents.

Key legal issues

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01

Consequence of filing an appeal out of time without leave

Holding

An appeal filed beyond the 30-day period in Section 79G of the Civil Procedure Act without leave is irregular, a nullity, and liable to be struck out

Reasoning

Section 79G requires appeals from subordinate courts to the High Court to be filed within 30 days of the decree or order appealed against, save where the lower court certifies time for preparation of copies or where leave is granted for good and sufficient cause. The impugned judgment was delivered on 16th November 2023 but the memorandum of appeal was filed on 6th February 2025, some 15 months later. The trial magistrate's ruling of 25th April 2024 expressly declined the prayer for leave to file a notice of appeal out of time, so no leave existed. Following Supreme Court authority, the appeal is a nullity and must be struck out.

p. 9
02

Whether the trial court's ruling of 25th April 2024 conferred leave to appeal out of time

Holding

It did not; prayers 1, 2 and 3 were spent and prayer 4 (leave to file a notice of appeal out of time) was among those declined when the motion was dismissed

Reasoning

The record of the trial court showed that the appellants' Notice of Motion dated 5th February 2024 sought, inter alia, leave to file a notice of appeal out of time (prayer 4) and stay of execution. By a ruling delivered on 25th April 2024 the trial magistrate found no good grounds, dismissed the motion with costs and declined stay. The appellants' counsel's submission that the pronouncement that prayers 1, 2 and 3 were spent impliedly covered the leave prayer was rejected: the leave prayer was prayer No. 4 and was among those declined.

p. 7

Legal principles established

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  • An appeal filed out of time without leave of the court is a nullity and must be struck out

Court orders

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  1. 1.The appeal dated 5th February 2025 against the Judgement of Hon. Purity Koskey SPM delivered on 16th November 2023 in Kabarnet CMC ELC No. E001 of 2023 is struck out
  2. 2.Costs to the Respondent
On appeal from
Kabarnet Senior Principal Magistrate's Court (ELC)
CMC ELC Case No. E001 of 2023
Jurisdiction invoked
Appeal from subordinate court under Section 79G of the Civil Procedure Act

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, "Cherutich & another v Cherutich & another (Environment and Land Appeal E002 of 2024) [2026] KEELC 4913 (KLR)", Case Analysis (2026). Kabarnet ELCLA No. E002 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4913/eng@2026-07-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.