Cherutich & another v Cherutich & another (Environment and Land Appeal E002 of 2024) [2026] KEELC 4913 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Consequence of filing an appeal out of time without leave
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
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.
Whether the trial court's ruling of 25th April 2024 conferred leave to appeal out of time
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
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.
Legal principles established
#- An appeal filed out of time without leave of the court is a nullity and must be struck out
Court orders
#- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.