https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4875

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NYERI** **ELCA NO. 3 OF 2022** 1. **HUSSEN ALI ABDALLA ALIAS BILLY** 2. **HALIMA WANJIKU WAWERU** 3. **RUKIA NJOKI HAMISI…………………………………APPELLANTS** **VERSUS** 1. **SUSAN WANJIRU ZAKARIA** 2. **NATIONAL LAND COMMISSION** 3. **COUNTY LAND REGISTRAR** 4. **COUNTY GOVERNMENT OF NYERI……………RESPONDENTS** **RULING** 1. The Notice of Motion Application dated April 7, 2026, seeks the following reliefs: 2. A declaration that the appeal remains dismissed in accordance with the Court order dated 21st July 2025. 3. The Memorandum of Appeal dated January 19, 2022, and the record of appeal submitted in this matter on August 21, 2025, shall be expunged from the court records on the grounds of lack of jurisdiction and submission beyond the statutory deadline. 4. The costs of the application and the entire appeal be awarded to the applicant/1st respondent. 5. The Application is supported by the affidavit of Susan Wanjiru Macharia, dated 7th April 2026. The Application is opposed by an objection dated and uploaded on 13th April 2026 and by a replying affidavit from Counsel for the Appellant. 6. Based on the materials and submissions before me, the issues for this Court's determination are whether the Memorandum of Appeal and the entire appeal should be struck out for being filed out of time and who should bear costs. 7. The applicant asserts that on 21 July 2025, this Court granted the appellant a final opportunity to submit the record of appeal within 30 days, failing which the appeal would be automatically considered struck out. The deadline for submitting the record was 20 August 2025. The record of appeal was only submitted on 21 August 2025. It is submitted that no pending appeal remains upon which the appellant can now attempt to file a record of appeal. It is also argued that litigation must come to an end. Furthermore, the Court no longer possesses jurisdiction over the matter, as the order dated 21 July 2025 was self-executing. 8. Conversely, the respondent asserts that, for the present case, the event that granted the appellant a 30-day period to file the Record of Appeal occurred on 21st July 2025. Therefore, 21st July 2025 is excluded from the calculation of time, and the period commences on 22nd July 2025. According to the Judiciary Case Tracking System, the Record of Appeal was uploaded to the portal within the allowable timeframe; however, due to the voluminous nature of the documents, it was stamped at the registry on 21st August 2025. 9. Mugo J. issued a ruling on 21 July 2025 extending and once more permitting the appellant to lodge an appeal beyond the prescribed timeframe and articulated the following in paragraphs 12, 13, and 14 of the ruling: ***"On 11.6.2025 I allowed the appellant to file their response to the current application to which they never adhered. Their failure not to file the record of appeal is therefore deliberate. However, I will give the appellants one last chance to file their record of appeal within the next 30 days, failure to which this appeal will automatically be deemed to be struck out. As to the stay of execution, the respondents as at liberty to execute the judgement/decree without further ado.”*** 1. The issue is whether the 30-day window provided by the Judge lapsed on August 21, 2025, or August 22, 2025. Pursuant to Order 50, Rule 8 of the Civil Procedure Rules, 2010, which provides as follows: ***"In any case in which any particular number of days not expressed to be clear days is prescribed under these Rules or by an order or direction of the court, the same shall be reckoned exclusively of the first day and inclusively of the last day.”*** 1. Section 57(a) of the Interpretation and General Provisions Act (Chapter 2, Laws of Kenya) provides as follows: ***“In computing time for the purposes of a written law unless contrary intention appears –*** 1. ***a period of days from the happening of an event or the doing of an act or thing shall be deemed to be "exclusive of the day on which the event happens"*** 2. See also the decision in **Mwangi v Maina (Civil Appeal E281 of 2021) [2022] KEHC 15712 (KLR) (Civ) (28 November 2022) (Judgment),** cited with approval in **Auma v Ndisya [2026] KEHC 3414 (KLR**), which explains that the date the event occurs is excluded. In our case, the event occurred on 21st July 2025, when the judge issued the orders. That date is excluded. 3. Therefore, based on the literal interpretation of the relevant statutory provisions and judicial authorities I have cited, and specifically for this case, the event that granted the appellant a 30-day period to file the Record of Appeal occurred on July 21, 2025. Consequently, that date is excluded from the calculation of the time limit, and the period begins on July 22, 2025; the 30 days then lapsed on August 22, 2025, within which the appellant complied. 4. Consequently, the Notice of Motion dated April 7, 2026is hereby dismissed. 5. Costs will abide by the outcome of the appeal. **Dated, signed, and delivered virtually at Nyeri on this 22nd day of July 2026, in the absence of the parties and their counsel, who were aware of the delivery date.** **E. K. MAKORI** **JUDGE**