Standa & 2 others v Mulaya & 2 others (Civil Appeal (Application) E013 of 2024) [2026] KECA 1558 (KLR) (31 July 2026) (Ruling)

Standa & 2 others v Mulaya & 2 others (Civil Appeal (Application) E013 of 2024) [2026] KECA 1558 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1558 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Appeal (Application) E013 of 2024 PM Gachoka, MN Nduma & L Ndolo, JJA July 31, 2026 Between Abigael Khayesa Standa 1st Applicant Gladys Namalwa Simiyu 2nd Applicant Maurice Khaemba Biketi 3rd Applicant and Emily Kivali Mulaya 1st Respondent David Sifuna 2nd Respondent Trans Nzoia County 3rd Respondent (An application for striking out the Record of Appeal arising from the Judgment, Order and Decree of the Environment and Land Court at Kitale (F. Nyagaka, J.) delivered on 5th December, 2023) in ELC Cause No. 120 of 2014 (Consolidated with ELC No. 119 of 2024) Ruling 1.Before us are two applications dated 6th March 2026 and 20th March 2026, respectively, both seeking the striking out of the record of appeal. They were heard concurrently and a consolidated ruling is to be given as they raise similar issues. 2.In the Notice of Motion dated 6th March 2026, the applicants have invoked rule 86 of this Court’s Rules, 2022 seeking orders that the record of appeal in Civil Appeal No. E013 of 2024 arising from the consolidated cases ELC No. 119 of 2014 and ELC No. 120 of 2014 be struck out with costs. The application is supported by the grounds on the face of the application and the supporting affidavit of David Sifuna sworn on 6th March 2026. The main grounds raised are that the appellants were not parties in ELC Case Number 120 of 2014 as consolidated with ELC Case Number 119 of 2014 and that they failed to seek leave before filing the appeal. Accordingly, the appeal was instituted by parties without locus and the jurisprudence on this question is now settled that the right to appeal is a creature of statute and where leave is required, a party must apply for leave before filing the appeal. 3.In the Notice of Motion dated 20th March 2026, the applicant prays that the notice of appeal and the record of appeal in Civil Appeal No. E013 of 2024 be struck out, with costs. The application is supported by the grounds on the face of the application and the supporting affidavit of Emily Kivali Mulaya sworn on 20th March 2026. Similarly, it raises the same grounds that the appellants were not parties in the consolidated suits ELC No.119 of 2014 and ELC No. 120 of 2014 and that therefore, they ought to have sought leave to file the appeal, which they did not do and consequently, the appeal is incompetent. It is further stated that the 1st appellant, who claims to be the widow of the late Henry Wanyama Khaemba was represented in the original suits by the 3rd respondent, Maurice Khaemba Biketi. In addition, the applicant states that the 1st appellant (1st respondent in this application) was aware of the suit, as she testified in Kitale Criminal Case No. 3836 of 2014. The other grounds that are raised are not relevant as they go to the merit of the appeal and therefore not germane at this stage. 4.We heard the twin applications virtually on 6th July 2026 and the parties were represented as follows: Mr. Elisha Ongoya, SC and Ms Kayugira appeared for the applicants and Mr. Yego and Mr. Nderitu appeared for the respondents. Counsel elaborately highlighted their respective stances. The applicants’ submissions were dated 17th April 2024, together with a case digest of the same date. The respondents' submissions were dated 29th June 2026 and 2nd July 2026 respectively. 5.We have considered the applications, the affidavits as well as the annexures thereto. We have also considered the oral and written submissions of the parties and analyzed the law. The only question that arises for determination is whether this appeal is incompetent due to the failure by the appellants to seek leave before filing it. To ask the question differently, what is the respondents’ answer as to whether leave is necessary and if it was sought before filing the appeal? 6.The applicants have cited the case of Attorney General v Bala (Civil Appeal No.223 of 2017) KECA 117 (KLR) (3rd February 2023) in which this Court stated that:“the right of appeal is a creature of statute and an appeal can only lie if :(a) by a party in the suit if he is aggrieved by the judgement; or (b) by a person who is not a party but who is aggrieved by the judgement and seeks leave to appeal against the judgement” 7.The applicants argue that the right of appeal has to be expressly provided by statute. It cites the Supreme Court decision in Law Society of Kenya v Communication Authority of Kenya & 10 others (Petition 8 of 2020) KESC 27 (KLR)(civ) (21 April 2023 (judgement) in which the Court addressed the question on leave as follows:“…… therefore, flowing from the constitutional provisions on the jurisdiction of this court, the definition of a person seeking to file an appeal only extends to a party who is aggrieved by a decision issued against him by the Court of Appeal and wishes to prefer an appeal to the Supreme Court. The definition does not open the door for any passer-by who is disgruntled with a decision delivered by the appellate court to approach this court. This also extends to matters relating to public interest. Furthermore, there is difficulty in granting relief at the appellate stage to a party who did not litigate those issues before the superior courts.” (emphasis ours) 8.What is the respondents’ answer to the issue of leave? In her replying affidavit sworn on 29th June 2026, Abigael Khavecha Standa states as follows:“ 7.That being aggrieved by the said judgment, we filed a Notice of Appeal to this Honourable Court dated 17th December 2023 and the same was served upon all the parties. (Annexed and marked as AKS2 is a copy of the Notice of Appeal). 8.That it is true that we were not parties to the suit in the Environment and Land Court Case Numbers 119 and 120 of 2014. However, judgment of the Environment and Land Court directly affects my proprietary rights and threatens to dispossess me of our lawful property without us even having been granted a proper hearing in the primary suit. 10.That while it is true that formal leave to appeal as a non-party was not sought prior to the filing of the Notice of Appeal, this omission was an honest procedural oversight and was entirely inadvertent, lacking any malicious intent to abuse the court process. 11.That our current Counsel took over the conduct of this matter in July 2025 and immediately filed a notice of change of advocates dated 17th July 2025 and our submissions on the main appeal dated 22nd July 2025 oblivious of the fact that no leave to appeal had been sought or granted to the previous counsel on record. They were also not aware of the existence of this instant application until 26th May 2026 when the issue was raised by Counsel of the 1st and 2nd Respondents, hence we have filed an application dated 29th June 2026 seeking leave to appeal.” 9.In their submissions, the respondents argue that the applications were not filed within 30 days in line with rule 86 of the Rules of this Court. It is admitted that the respondents were not parties in the Environment and Land Court. They argue that their proprietary rights are affected without a proper hearing. On the question whether leave was necessary, we shall quote the submissions verbatim...“leave to appeal as a non-party was not sought prior to the filing of the notice of appeal, this omission was an honest procedural oversight and was entirely inadvertent, lacking any malicious intent to abuse the court process……we filed an application dated 29th June 2026.” 10.We have carefully considered the applications and submissions by the parties. We shall first dispose of the question whether the applications should be dismissed for being filed outside the 30 days as required by rule 86 of the Rules of this Court. Rule 86 provides as follows:“A person affected by an appeal may, at any time, either before or after the institution of the appeal, apply to the Court to strike out the notice or the appeal, as the case may be, on the ground—a.that no appeal lies; orb.that some essential step in the proceedings has not been taken or has not been taken within the prescribed time:Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days after the date of service of the notice of appeal or record of appeal, as the case may be.” 11.The application dated 6th March 2024 seeks the striking out of the record of appeal for being filed without leave. It is argued that the memorandum of appeal is dated 19th February 2024 and that the application is dated 6th March 2024 and therefore within the 30-day window. It is argued that the application was served on 19th March 2024 and that the respondents were given notice that the appeal was incompetent more than 2 years ago. Equally, it was argued that the application dated 20.3.2024 was filed within 30 days. It is not contested that the memorandum of appeal is dated 19th February 2024 and therefore the applications were filed within the statutory timelines. Therefore, we do not agree with the respondents that we should invoke the proviso to rule 86 of the Rules of this Court. 12.On the question whether the appeal should be struck out as leave was not sought, the respondents themselves expressly admit that leave is necessary and that it was not sought. We are orally advised that there is a pending application that has been filed seeking leave. That application will succeed or fail on its merits, and we cannot comment on it as it is not before us. Therefore, the less we say about this issue, the better, lest we embarrass the bench that will hear and determine that application. 13.It is trite that where leave is necessary, as in this case, a party must seek leave before instituting an appeal. As the Supreme Court stated in the Law Society of Kenya case (supra), we should not allow a passer-by who is aggrieved by a decision to approach the Court without leave. The Rules of this Court have express provisions allowing parties who are affected by a decision in which they never participated to seek leave to join or file an appeal. The bench hearing such an application will hear and determine the reasons why such a party never participated in the trial court and the reasons why they should join or file an appeal. 14.In this application, the respondents expressly admit that they never sought leave. They blame the previous advocates on record, but this cannot cure the defect. The appeal which was filed without leave stands on sinking sand and cannot be sustained: we agree with the applicants that it is incompetent. 15.We allow the applications. Consequently, Civil Appeal No. E013 of 2024 is hereby struck out with costs to the applicants. DATED AND DELIVERED AT ELDORET THIS 31ST DAY OF JULY, 2026.M. GACHOKA C. Arb, FCIArb.......................................JUDGE OF APPEALNDUMA NDERI......................................JUDGE OF APPEALL. M. NDOLO......................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed DEPUTY REGISTRAR