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Court of AppealStruck OutNot stated in the judgment· [2025] KECA 1342 (KLR)

Elisha Mbogo v Marion Kaari Mbui

Court of Appeal of Kenya
17 July 2025
WKW. Karanja
121 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal struck out an application to appeal late because it cited legal provisions that give the Court no power to hear it.

What this practically means

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Executive summary

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This is a short single-judge ruling of the Court of Appeal at Nyeri delivered by W. Karanja, JA, on 17 July 2025. The Court had before it an undated notice of motion filed by Mbiyu Kamau & Company Advocates seeking, in substance, leave to file an appeal out of time. The motion was expressed to be predicated on Article 159 of the Constitution, sections 3, 3A, 79G and 95 of the Civil Procedure Act, 2010, and Orders 50 Rule 6 and 51 Rule 1 of the Civil Procedure Rules, 2010. The Court held that none of those provisions invokes the jurisdiction of the Court to entertain an application for leave to file an appeal out of time. On that basis the application, as drawn, was characterised as grossly incompetent. The Court struck out the motion and awarded costs to the respondent because the application was defended. No authorities were cited or considered, no decision below was reviewed or disturbed, and no substantive determination was made on the merits of the proposed appeal or on any extension-of-time factors such as length of delay or the draft appeal's arguability. The ruling's binding significance lies in its insistence that an extension-of-time application must be anchored on a provision that actually confers jurisdiction on the Court of Appeal; a motion resting on inapposite provisions is incompetent and will be struck out, with costs to a respondent who appears to oppose it.

Key legal issues

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01

Whether the motion invoked the jurisdiction of the Court of Appeal for an extension of time to appeal

Holding

It did not; the provisions cited (Article 159 of the Constitution, sections 3, 3A, 79G and 95 of the Civil Procedure Act, and Orders 50 Rule 6 and 51 Rule 1 of the Civil Procedure Rules, 2010) do not confer jurisdiction to entertain an application for leave to appeal out of time, rendering the application grossly incompetent

Reasoning

The Court examined the provisions under which the motion was expressly predicated and found that none of them empowers the Court to entertain an application for leave to file an appeal out of time. Because the foundation of the application was jurisdictionally defective, the application as drawn was grossly incompetent, attracting striking out with costs to the defending respondent.

p. 1

Legal principles established

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  • An application for leave to file an appeal out of time must be founded on a provision that actually invokes the Court of Appeal's jurisdiction; a motion predicated on unrelated provisions such as section 3A or 79G of the Civil Procedure Act or Order 51 Rule 1 of the Civil Procedure Rules is grossly incompetent and liable to be struck out

Court orders

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  1. 1.The notice of motion is struck out with costs to the respondent, as it was defended
Jurisdiction invoked
No provision invoking the Court of Appeal's jurisdiction was cited; the motion relied on Article 159 of the Constitution, sections 3, 3A, 79G and 95 of the Civil Procedure Act, 2010 and Orders 50 Rule 6 and 51 Rule 1 of the Civil Procedure Rules, 2010, all held insufficient for an extension-of-time application

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Elisha Mbogo v Marion Kaari Mbui", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1342/eng@2025-07-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.