[2025] KEELC 4589 (KLR)
The court found that the appellant conceded the judgment was delivered on 22/10/2024 and the appeal was filed on 31/01/2025, well outside the 30-day statutory period prescribed by section 79(G) of the Civil Procedure Act. No leave of court was sought or obtained to file the appeal out of time. Section 79(G) is a...
Source-derived case information.
- Citation
- [2025] KEELC 4589 (KLR)
- Parties
- Appellant: David Njomo Mackallah; Respondent: Samuel Leuru Morintat; Respondent: Committee Olomismis Group Ranch
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kilgoris
- Jurisdiction
- Kenya
- Case Number
- Land Case Appeal E004 of 2025
- Procedural Posture
- Land Case Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- Application allowed; appeal struck out for being filed out of time without leave.
- Judges
- MN Mwanyale
- Legal Topics
- Appeal Out of Time, Leave to Appeal, Jurisdiction of Court, Statutory Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Njomo Mackallah
Appellant
Samuel Leuru Morintat
Respondent
Committee Olomismis Group Ranch
Respondent
Procedural Posture
Land Case Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal was filed out of time without leave of the court.
- 2 Whether the court has jurisdiction to entertain an appeal filed outside the statutory period without leave.
- 3 Whether the application to strike out the appeal is merited.
Ratio Decidendi
The court found that the appellant conceded the judgment was delivered on 22/10/2024 and the appeal was filed on 31/01/2025, well outside the 30-day statutory period prescribed by section 79(G) of the Civil Procedure Act. No leave of court was sought or obtained to file the appeal out of time. Section 79(G) is a substantive provision of law, and compliance is mandatory unless the court is satisfied that there is good and sufficient cause for delay and grants leave. Since the appeal was filed out of time without leave, the court lacks jurisdiction to entertain it. Consequently, the application to strike out the appeal was merited and allowed.
Court Disposition
Application allowed; appeal struck out for being filed out of time without leave.
Orders
- The Memorandum of Appeal dated 31/01/2025 is struck out.
- Costs of the application awarded to the applicant.
Full Case Text
Judgment text and source record
30 paragraphs
Mackallah v Morintat & another (Land Case Appeal E004 of 2025) [2025] KEELC 4589 (KLR) (19 June 2025) (Ruling)
Neutral citation: [2025] KEELC 4589 (KLR)
Republic of Kenya
In the Environment and Land Court at Kilgoris
Land Case Appeal E004 of 2025
MN Mwanyale, J
June 19, 2025
Between
David Njomo Mackallah
Appellant
and
Samuel Leuru Morintat
1st Respondent
Committee Olomismis Group Ranch
2nd Respondent
Ruling
1. The Notice of motion dated 28/02/2025 subject of this Ruling seeks to strike out the Appeal filed on 31st January 2025 the same having been filed out of time and without leave of the Honourable court. Contrary to section 79(G) of the Civil Procedure Act 2010.
2. In support of the application are 5 grounds to wit,i.That the judgement at the trial court in Kilgoris MCELC No. 38/2019 was delivered on 22/10/2024. ii.The Appellant filed the present appeal on 31/01/2025, well outside the 30 days statutory period provided by section 79(G).iii.That no leave was sought or obtained to filing the Memorandum of Appeal dated 31/10/2025. iv.In view of the foregoing, this Honourable court is devoid of jurisdiction to entertain the Appeal.v.In the premises, the Appeal filed herein, is misconceived and bad in law.
3. The Application is supported by the affidavit of the 1st Respondent/Applicant Mr. Samuel Leuru Morintat who reiterates the grounds in support of the application and has annexed a hand written copy of the judgement delivered on 22/10/2024.
4. The Appellant/Respondent Mr. David Njomo Makallah acting in person, filed a Response to the application vide the Replying affidavit deponed on 14th March 2025 with a whopping 40 paragraphs raising interalia the reasons for the delay, but still conceeded at paragraph 7 thereof that the judgement was delivered on 22/10/2024, and that his appeal was lodged on 31/01/2025 as deposed at paragraph 13 thereof.
5. The Replying affidavit alluded to issue of substantive justice under Article 159(2)(d) of the constitution and that procedural rules are hand maids of justice, hence the application lacks merit and ought to be dismissed.
6. The application was canvassed by written submissions which the court has taken into account.
7. The only issue for determination is whether the application is merited.
8. Having conceded that the impugned Judgement was delivered on 22/10/2024 the 30 days period to file an appeal lapsed on or before the 22/11/2024.
9. The Appeal herein was filed on 31/01/2025, about 2 months later without leave of the court.
10. Section 79(G) of the Civil Procedure Act provides“79. GEvery appeal from a subordinate court to the High court shall be filed within of 30 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 satifies the court that he had good and sufficient cause for not filing the appeal in time”.
11. The said provision is a substantive provision of the law and not a procedural provision of the law.
12. Having filed the appeal out of time without leave, the court lacks jurisdiction to determine the Appeal as the Memorandum of Appeal dated 31/01/2025 was filed out of time hence application dated 28/02/2025, is merited and the same is hereby allowed in terms that the Memorandum of Appeal dated 31/01/2025 is hereby struck out.
13. Costs of the application awarded to the Applicant.
DATED AT KILGORIS THIS 19TH DAY OF JUNE 2025. HON. M.N. MWANYALEJUDGEIn the presence of.C/A – Emmanuel/Sylvia/SandraMs. Yala for the Applicantn/a for Mr.David Mackallah Appellant/ Respondent acting in person.