https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4913

**+** **** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KABARNET** **ELCLA NO. EO02 OF 2024** **SOTE CHERUTICH …….……..……………………….… 1ST APPELLANT** **KELVIN C. KOSIOM …………………………………….. 2ND APPELLANT** **VERSUS** **BENJAMIN CHERUTICH………..………...…….……. 1ST RESPONDENT** **JOYCE CHERUTICH (Suing as the administrators** **of the estate of Cherutich Chirchir (deceased) … 2ND RESPONDENT** **RULING** **(Being an appeal against the Judgment of HON. PURITY KOSKEY (SPM) delivered on 16th November 2023 in KABARNET CMC ELC CASE NO. E001 of 2023)** 1. The parties herein litigated over the ownership of the land parcel **No. Plot 31A** Tenges Trading Centre in Kabarnet Senior Principal Magistrate’s Court ELC Case No. E001 of 2023. The Appellants were the Defendants while the Respondents were the Plaintiffs. 2. The suit was heard by **HON. PURITY KOSKEY** who, vide a Judgment delivered on 16th November 2023, found in favour of the Respondents. 3. Aggrieved by the Judgment, the Appellants moved to this court and filed a Notice of Appeal dated 17th July 2024 and filed on the same day. The Notice of Appeal reads: **“Take Notice that the Appellants herein SOTE CHERUTICH and KELVIN C. KOSIOM being dissatisfied with the ruling of the Honourable PURITY KOSGEY, Senior Principal Magistrate in Kabarnet SPMC ELC Case No. E001 of 2023 delivered on 11/7/2024 now wish to appeal against the whole of the said ruling.”** 1. No appeal was filed against the said ruling. 2. Subsequently, and vide a memorandum of Appeal dated 5th February 2025 and filed on 6th February, the Appellants filed this appeal raising four (4) grounds of appeal against the Judgment delivered by the same Magistrate in the same case on 16th November 2023. The grounds of the appeal are not necessary for the purpose of this ruling and I therefore need not rehash them. 3. It is that Memorandum of Appeal which has provoked the Respondents to move to this court vide their Notice of Motion dated 19th December 2025 and filed on 13th January 2026. The same is premised under the provisions of **Section 79G** of the Civil Procedure Act **and Order 51 Rule 1** of the Civil Procedure Rules. The Respondents seek the following orders: 4. **The appeal dated 24th January 2025 be struck out.** 5. **Costs.** 6. The motion is based on the grounds set out therein and is supported by the affidavit of **BENJAMIN CHERUTICH** the 1st Respondent herein. 7. The crux of the Motion is that the impugned Judgment having been delivered on 16th November, 2023, the Appellants should have lodged their appeal within 30 days from the date of Judgment. This appeal is therefore filed out of time, is incompetent and should be struck out. Annexed to the Motion is a copy of the impugned Judgment dated and delivered on 16th November 2023. 8. In response to the Motion, **EVANS OGETO MIYENDA** Counsel for the Appellants filed a replying affidavit dated 16th February 2026 and filed on 30th March 2026. 9. He had deponed therein that he was instructed by the Appellants to act for them after the time for appealing had expired. He therefore filed an application before the trial magistrate seeking leave to come on record and file the appeal out of time as well as stay of execution among others. That the trial magistrate delivered a ruling allowing the application except the prayer to stay of execution. That this appeal was therefore properly filed and the Respondents Motion should be dismissed. 10. This court directed that the Motion be canvassed by way of written submissions. The same have been filed but **MR. KIPNYEKWEI** instructed by the firm of **NYEKWEI & COMPANY ADVOCATES** for the Respondents and by **MR. MIYIENDA** instructed by the firm of **MIYIENDA & COMPANY ADVOCATES** for the Appellants. 11. I have considered the Motion, the rival affidavits and the submissions by Counsel. 12. I must start with the averment by **MR. MIYIENDA** in paragraphs 5 and 6 of his replying affidavit. Therein, he has averred as follows: **5: “That I accordingly filed an application before the trial magistrate in which I sought leave to come on record, leave to file the Notice of Appeal out of time and stay among other prayers”** **6: “That the honourable trial magistrate delivered a ruling in which she allowed the other prayers but declined to grant stay of execution of the Judgment.”** 1. I have perused the record of the trial court. It is true that vide a Notice of Motion dated 5th February 2024 and filed on 6th February 2024, the Appellants sought the following order: 2. **That the Motion be certified as urgent and be dispensed with in the first instance.** 3. **That the firm of M/s MIYIENDA & COMPANY ADVOCATES be given leave to come on record for the Defendants/Applicants.** 4. **That the Honourable Court be pleased to grant temporary stay of execution of the Judgment delivered on 16th November 2023, decree and all consequential orders stemming therefrom.** 5. **That the Honourable court be pleased to grant leave to the Defendants/Applicants to file a notice of appeal out of time.** 6. **That pursuant to grant of prayer No. 3 above, the Honourable court be pleased to stay the execution of the Judgment, decree and all consequential orders stemming therefrom pending the determination of the intended appeal.** 7. **That costs be provided for.** 8. When that Motion was placed before the trial magistrate on 7th February 2024, she did not certify it as urgent but nonetheless granted the Appellants a temporary order of stay of execution for 15 days. She then listed it for mention on 29th February 2024. On that day, she directed that the Motion be canvassed by way of written submissions. The parties filed their submissions and vide a ruling delivered on 25th April 2024, the trial magistrate addressed herself as follows in paragraphs 24 and 25: **24: “I find no good grounds in the circumstance to grant the orders sought.”** **25: “The end result is that this court finds no merit in the notice of motion dated 5/2/2024 is hereby dismissed with costs to the Respondent.”** 1. At paragraph 1 of her ruling, the trial magistrate stated that paragraphs 1, 2 and 3 of the Appellants Motion was spent. In his submissions at page 3, Counsel for the Appellants has expressed himself as follows: “**At paragraph 1 of the ruling dated 25.4.2024, the court pronounced that prayers 1, 2 and 3 of the application dated 5.2.2024 were spent. This gave the impression that this covered the prayer for leave to appeal the Notice of Appeal out of time”** 1. Counsel cannot be correct in that submission. The prayer to file a Notice of Appeal out of time was prayer No. 4. It was among those prayers which were declined. 2. Notwithstanding the lengthy submissions by Counsel, what is before me for determination is the Notice of Motion dated 19th February 2025 seeking the substantive order that the appeal dated 16th November 2023 be struck out. The memorandum of Appeal filed herein on 6th February 2025 is dated 5th February 2025 and it is clear that it seeks to appeal the Judgment delivered on 16th November 2025. Not to appeal against any ruling and the submissions making reference to a ruling delivered on 17th July 2024 serve no useful purpose. The submissions by Counsel clearly make reference to the Judgment delivered on 16th November 2023. The Respondents’ counsel says so in the first paragraph of his submissions where he has stated thus: “**Your Lordship, the Respondents in the Appeal have filed this Motion seeking orders for striking out the Appeal dated 24.1.2025 on grounds that the same was filed out of time.”** 1. The Appellants’ counsel has also submitted at the first paragraph that: **“Your Lordship, the Respondent filed their application dated 19.12.2025 seeking an order to strike out the appeal dated 24.1.2025 on ground that it was filed out of time.”** 1. Both counsels’ submissions are titled submissions on the application dated 19th December 2025 and it is clear from that Motion that what the Respondent seeks to strike out is the Judgment delivered on 16th November 2023. 2. **Section 79G** of the Civil Procedure Act provides for “**Time for filing appeals from subordinate courts**.” It reads; “**Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order;** **Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had a good and sufficient cause for not filing the appeal in time”** Emphasis mine. 1. The Judgment sought to be appealed was delivered on 16th November 2023. This appeal was filed on 6th February 2025 some 15 months later which is well beyond the statutory period of 30 days within which this appeal should have been filed. 2. Counsel for the Appellant has deponed in paragraph 4 of his replying affidavit thus: **4: “That I was instructed by the appellants/ respondents later to act for them after the time for appealing had lapsed.”** 1. No explanation has been given as to why the appeal was not filed within the statutory period provided for in the law. Besides, the explanation for that delay should have come from the Appellants because that is a matter within their knowledge. However, that is not of any consequence in this ruling because I am not considering any application to extend time for lodging an appeal. What is before me is the fate of an appeal filed out of time. 2. The answer to that question was provided by the supreme court in the case of **SALAT V. INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION & 7 OTHERS APPLICATION 16 OF 2014 [2014 KESC 12 KLR.** At paragraphs 53 and 54 of its ruling, the apex court rendered itself as follows: **53: “By filing an appeal out of time before seeking extension of time, and subsequently seeking the court to extend time and recognize such ‘an appeal’, is tantamount to moving the court to remedy an illegality. This, the court cannot do.** **54: To file an appeal out of time and seek the court to extend time is presumptive and in-appropriate. No appeal can be filed out of time without leave of the court. Such a filing renders the “document” so filed a nullity and of no legal consequence. Consequently, this court will not accept a document filed out of time without leave of the court. It is unfortunate that Petition No. 10 of 2014 has been accorded a reference number in this court’s registry. This is irregular as that document is unknown in law and the same should be struck out.”** Emphasis mine. 1. In the case of **COUNTY EXECUTIVE OF KISUMU V. COUNTY GOVERNMENT OF KISUMU & 8 OTHERS CIVIL APPLICATION NO. 3 of 2016 [2017 KESC 16 KLR]** the same court expressed itself as follows at paragraph 35 of its ruling. **35: “We are in total agreement with the respondent that an appeal filed in this court out of time without leave of this court is irregular and this court will not invoke such ‘novel’ principles as urged in the applicant so as to validate that Petition and deeming it as properly filed.”** 1. Clearly, this appeal is for striking out. 2. Having considered the Respondents’ Motion dated 19th December 2025, this court makes the following dispositive orders; 3. **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.** 4. **Costs to the Respondent.** **BOAZ N. OLAO** **JUDGE** **29TH JULY 2026** **Ruling dated, signed and delivered by way of electronic mail on this 29th day of July, 2026 with notice to the parties.** **BOAZ N. OLAO** **JUDGE** **29TH JULY 2026**