https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5164

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC APPEAL NO. E020 OF 2021** **MARY WANJIRU NJIRI** **……..…………… 1ST APPELLANT/ RESPONDENT** **BETH WAMBUI NJIRI…………..……..…..2ND APPELLANT/ RESPONDENT** **VERSUS** **CHRISTINE MUCHIRI ……..…….………………RESPONDENT/APPLICANT** **RULING** 1. The matter before this Court is the Appellant's/Respondent's Notice of Preliminary Objection dated 4th August 2025, which challenges the competency of both the Respondent/Applicant’s application for stay and the in Notice of Appeal and the intended appeal dated 28th July 2025. 2. The objection is predicated on the contention that the Notice of Appeal was lodged outside the prescribed statutory timelines without leave of the Court and, consequently, that the intended appeal is incompetent and liable to be struck out. 3. Pursuant to the Court's directions, the Preliminary Objection was canvassed by way of written submissions. Much was said by counsel, but the issue itself is uncomplicated. 4. Those rival contentions crystallise into a single issue for determination, namely, whether the Notice of Appeal and the intended appeal were instituted within the time prescribed by law and, if not, whether they are rendered incompetent for want of leave. **Analysis and Determination** 5. Litigation cannot proceed on uncertain foundations. Where it is said that proceedings are incompetent from the outset, the Court must first test that assertion before embarking upon the merits. Whether the objection raised meets that threshold is answered by the now classical exposition in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd **[1969] EA 696**, where Law JA stated: "A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit." 6. Sir Charles Newbold P elaborated on the nature of such an objection as follows: "A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion." 7. The objection before the Court is anchored on the assertion that the intended appeal was instituted outside the period prescribed by law without leave of the Court. 8. The resolution of that objection is governed by section 79G of the Civil Procedure Act, which provides: "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 good and sufficient cause for not filing the appeal in time." 9. The provision is couched in mandatory terms and admits two pathways. The first is that an appeal be instituted within thirty days from the date of the decree or order appealed against, subject only to the exclusion of any period certified by the subordinate court as necessary for the preparation and delivery of the decree or order. The second is that, where the prescribed period has lapsed, the intending appellant must first obtain leave upon demonstrating good and sufficient cause for the delay. Outside those parameters, an appeal cannot be competently maintained. 10. In the instant case, the impugned judgment was delivered on **1st April 2025**, whereas the Notice of Appeal was not lodged until **28th July 2026**, well beyond the thirty-day period prescribed under section 79G of the Civil Procedure Act. 11. More significantly, the Respondent/Applicant neither sought nor obtained leave to institute the appeal out of time and has offered no explanation capable of constituting good and sufficient cause for the delay. In those circumstances, the appeal was instituted in clear contravention of the mandatory requirements of section 79G. 12. The Court cannot breathe life into proceedings commenced in plain disregard of the statute. Compliance with the timelines prescribed by section 79G is not a matter of convenience but of legal obligation. The appeal having been instituted outside the prescribed period without leave of the Court, and no good and sufficient cause having been shown for the delay, is incompetent. 13. Accordingly, the preliminary objection dated 4th August 2025 is allowed and the application dated 28th July 2025 is struck out with costs. It is so ordered. **Dated, Signed and Delivered, at Thika this 20th day of July 2026.** …………………….. **J. M. ONYANGO** **JUDGE**