Bandari v Mutuku & 12 others (Environment and Land Appeal 10 of 2023) [2024] KEELC 5256 (KLR)
The bottom line
#The Environment and Land Court in Malindi struck out a landowner's appeal because it was filed late without the court's permission, ending her trespass claim.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC to hear an appeal filed out of time without leave
The court lacks jurisdiction over an appeal filed outside the 30-day statutory period where no leave to file out of time was sought or obtained; such an appeal must be struck out.
The court analysed Order 49(4) of the Civil Procedure Rules, requiring appeals to be instituted within 30 days of the decision appealed against. The memorandum of appeal was filed on 14th May 2024, eleven days after the 3rd May 2024 judgment. No application for extension of time or leave was made. Relying on the Court of Appeal's decision in Utawala, the court held that an appeal instituted without leave where leave is required is incompetent, and since jurisdiction is everything, the only option was to strike out the appeal.
Whether a court can proceed to the merits where jurisdiction is absent
No; once jurisdiction is found to be lacking the court must not proceed to determine the appeal on its merits.
Applying the dictum in Owners of the Motor Vessel 'Lillian S' and the Supreme Court decision in Munyu Maina, the court confirmed that jurisdiction is a threshold matter that must be resolved first. Having found the memorandum of appeal incompetent for want of statutory time, the court declined to re-evaluate the evidence from the trial court, noting that doing so would be an exercise in futility.
Compliance with procedure governing institution of first appeals
A first appeal must be instituted in strict compliance with the statutory timelines; courts have no discretion to overlook non-compliance absent a formal extension application.
The court reviewed Order 49(4) of the Civil Procedure Rules and observed that although the appellant argued that period for filing appeals was never supplied and that she was ready to file her record of appeal, no explanation was offered for filing the memorandum of appeal out of the 30-day period. Citing Utawala Athletic Club v Kenya Golf Holding Ltd, the court held that no court has jurisdiction to hear an appeal filed out of time without leave.
Legal principles established
#- An appeal filed outside the statutory 30-day period without leave of the court is incompetent and liable to be struck out for want of jurisdiction.
- Jurisdiction is a fundamental issue which a court must address even on its own motion, and where it is lacking the court must down its tools.
Court orders
#- 1.The appeal be and is hereby struck out
- 2.The appellant to meet her own costs
- On appeal from
- Chief Magistrate's Court at Malindi
- CMCC No. 160 of 2017
- Jurisdiction invoked
- First appeal to the Environment and Land Court against a decision of the Chief Magistrate's Court in a land/environment matter
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bandari v Mutuku & 12 others (Environment and Land Appeal 10 of 2023) [2024] KEELC 5256 (KLR)", Case Analysis (2024). ELC Appeal No. E012 of 2023 (former Malindi CMCC No. 160 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5256/eng@2024-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.