[2025] KEELC 3221 (KLR)
The court found that the Memorandum of Appeal dated 24th March 2025 was filed more than two years after the judgment sought to be appealed, far outside the statutory thirty-day period provided by Section 79G of the Civil Procedure Act. No leave to file the appeal out of time had been granted or brought to the...
Source-derived case information.
- Citation
- [2025] KEELC 3221 (KLR)
- Parties
- Appellant: Sylvester Okumu Omusungu; Respondent: Margaret Mora Nyagaka
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E001 of 2024
- Procedural Posture
- Environment and Land Appeal / Ruling on Oral Application to Strike Out Appeal
- Outcome
- Memorandum of Appeal struck out with costs to the Respondent.
- Judges
- BN Olao
- Legal Topics
- Appeal Out of Time, Leave to Appeal, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sylvester Okumu Omusungu
Appellant
Margaret Mora Nyagaka
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Oral Application to Strike Out Appeal
Legal Issues
- 1 Whether the Memorandum of Appeal was filed within the statutory time limit.
- 2 Whether leave of court was obtained to file the appeal out of time.
- 3 Whether the appeal should be struck out for being filed out of time without leave.
Ratio Decidendi
The court found that the Memorandum of Appeal dated 24th March 2025 was filed more than two years after the judgment sought to be appealed, far outside the statutory thirty-day period provided by Section 79G of the Civil Procedure Act. No leave to file the appeal out of time had been granted or brought to the court's attention. In the absence of such leave, the appeal was incompetent and liable to be struck out. The court therefore struck out the Memorandum of Appeal with costs to the Respondent.
Court Disposition
Memorandum of Appeal struck out with costs to the Respondent.
Orders
- The Memorandum of Appeal dated 24th March 2025 is struck out.
- Costs awarded to the Respondent.
Full Case Text
Judgment text and source record
20 paragraphs
Omusungu v Nyagaka (Environment and Land Appeal E001 of 2024) [2025] KEELC 3221 (KLR) (7 April 2025) (Ruling)
Neutral citation: [2025] KEELC 3221 (KLR)
Republic of Kenya
In the Environment and Land Court at Busia
Environment and Land Appeal E001 of 2024
BN Olao, J
April 7, 2025
Between
Sylvester Okumu Omusungu
Appellant
and
Margaret Mora Nyagaka
Respondent
Ruling
1. This is in respect to the oral application by Mr Otieno counsel for the Respondent seeking the striking out of the Memorandum of Appeal dated 24th March 2025. By the aforesaid Memorandum of Appeal, Sylvester Okumu Omusugu (the Appellant herein) sought to set aside the Judgment of Hon. P. A. Olengo delivered on 22nd December 2023.
2. When the appeal came up for mention today, Mr Otieno counsel for the Respondent asked the Court to strike it out for having been filed out of time without leave.
3. Mr Andati counsel for the Appellant urged the Court to grant him time to file the relevant application.
4. Section 79G of the Civil Procedure Act provides that:79G:“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.”The Judgment sought to be appealed was delivered on 22nd December 2023. This appeal was filed on 24th March 2025. Prior to that, two other memoranda of appeal dated 7th February 2025 and 12th January 2024 had been filed but expunged at the request of counsel for the Appellant. The Memorandum of Appeal dated 24th March 2025 and which the Appellant now seeks to rely upon was filed on the same date. That was some 2 years and 3 months from the date when the Judgment sought to be appealed was delivered. No leave to file the appeal out of time has been granted by the Court. At least no such leave has been brought to this Court’s attention.
5. In the circumstances the Memorandum of Appeal dated 24th March 2025 is hereby struck out with costs to the Respondent.
BOAZ N. OLAOJUDGE7TH APRIL 2025RULING DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONIC MAIL ON THIS 7TH DAY OF APRIL 2025 SOON AFTER THE ORAL APPLICATION HAD BEEN CANVASSED.BOAZ N. OLAOJUDGE7TH APRIL 2025