[2025] KEELC 4954 (KLR)
The court found that the notice of appeal dated 6/3/2025 was a nullity because the defendants failed to file a memorandum and record of appeal within the 60-day period prescribed by the Court of Appeal Rules. The court relied on Rule 83 and Rule 82(1) of the Court of Appeal Rules, as well as relevant case law, to...
Source-derived case information.
- Citation
- [2025] KEELC 4954 (KLR)
- Parties
- Plaintiff: Lilian Jelimo; Defendant: Enock Kipkoech Kemboi; Defendant: Joyce Chepchirchir Tangut
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 78 of 2008
- Procedural Posture
- Ruling / Application to Mark Notice of Appeal as Withdrawn
- Outcome
- Notice of appeal marked as withdrawn; application allowed.
- Judges
- CK Nzili
- Legal Topics
- Withdrawal of Appeal, Notice of Appeal, Court Jurisdiction, Timelines for Appeal, Nullity of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lilian Jelimo
Plaintiff
Enock Kipkoech Kemboi
Defendant
Joyce Chepchirchir Tangut
Defendant
Procedural Posture
Ruling / Application to Mark Notice of Appeal as Withdrawn
Legal Issues
- 1 Whether the court has jurisdiction to mark the notice of appeal as withdrawn.
- 2 Whether the notice of appeal is deemed withdrawn or a nullity due to failure to file a memorandum and record of appeal within the prescribed time.
Ratio Decidendi
The court found that the notice of appeal dated 6/3/2025 was a nullity because the defendants failed to file a memorandum and record of appeal within the 60-day period prescribed by the Court of Appeal Rules. The court relied on Rule 83 and Rule 82(1) of the Court of Appeal Rules, as well as relevant case law, to conclude that the notice of appeal was deemed withdrawn and had no legal effect. The court confirmed its jurisdiction to mark the notice of appeal as withdrawn, noting that the procedural timelines are designed to ensure the efficient administration of justice. Accordingly, the notice of appeal was declared a nullity and marked as withdrawn.
Court Disposition
Notice of appeal marked as withdrawn; application allowed.
Orders
- The notice of appeal dated 6/3/2025 is marked as withdrawn.
- The notice of appeal is declared a nullity.
Full Case Text
Judgment text and source record
24 paragraphs
Jelimo v Kemboi & another (Environment & Land Case 78 of 2008) [2025] KEELC 4954 (KLR) (2 July 2025) (Ruling)
Neutral citation: [2025] KEELC 4954 (KLR)
Republic of Kenya
In the Environment and Land Court at Kitale
Environment & Land Case 78 of 2008
CK Nzili, J
July 2, 2025
Between
Lilian Jelimo
Plaintiff
and
Enock Kipkoech Kemboi
1st Defendant
Joyce Chepchirchir Tangut
2nd Defendant
Ruling
1. Following the ruling dated 21/2/2025, the defendants filed a notice of appeal dated 6/3/2025 under Rule 75 of the Court of Appeal Rules. They have now filed a notice of withdrawal of the intended notice of appeal dated 25/4/2025 under Rule 83 of the Court of Appeal Rules, which they now ask the court to mark as withdrawn.
2. When the matter came up on 18/6/2025, the applicants were directed to file written submissions on whether this court has jurisdiction to do so. The applicants rely on written submissions dated 24/6/2025. It is submitted that since no memorandum of appeal and a record of appeal were filed within 60 days as required by the Rules, the record of appeal is deemed as withdrawn. Reliance is placed on Beijing Industrial & Researching Institute v Lagoon Development Ltd [2015] eKLR.
3. Rule 83 of the Civil Procedure Rules provides that if an appeal is not filed within 60 days of the date of the order, there is a presumption of withdrawal of the appeal. Rule 82(1) states that an appeal is deemed filed when the memorandum of appeal, fees and security for costs are lodged at the appropriate registry within 60 days, after filing the notice of appeal, unless there is an application for a copy of the proceedings in the superior court within 30 days of the decision appealed against.
4. In Mae Properties Ltd v Joseph Kibe [2017] eKLR, the court said a notice of appeal dies a natural death after the expiry of 60 days unless leave has been sought to extend the time by the Court of Appeal. In Charles Wanjohi Waithaka v Githinji Ngure & another [2016] eKLR, the court said that the 60 days’ timeline is both constitutional, statutory and rule-based objective of ensuring justice is dispensed in a timely, just, efficient and cost-effective manner. I think the foregoing notice of appeal dated 6/3/2025 is as dead as a dodo.
5. In Macfoy v United Africa Co. Ltd [1961] 3 ALL ER 1169, a nullity was described as a nullity, and sometimes it is automatically null and void without much ado, though a court may declare it so.
6. The upshot is that the notice of appeal is a nullity. It is so confirmed.
7. Orders accordingly.
RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 2ND DAY OF JULY 2025. In the presence of:Court Assistant - DennisMunialo for defendants presentKamau Lagat for plaintiff absentHON. C.K. NZILIJUDGE, ELC KITALE.