Matiri v M’Nkoroi & another; M’Nkoroi (Plaintiff); M’Iria & another (Defendant); Matiri (Applicant) (Appeal E010 of 2025) [2025] KEELC 1389 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the appeal was filed out of time and is a nullity
The 30-day period under section 79G expired on or about 29th January 2025; the memorandum of appeal filed 11th February 2025 was out of time and, without leave, a nullity.
In computing the 30 days under section 79G, the date of the ruling (4th December 2024) is excluded and the last day included. The period from 21st December 2024 to 13th January 2025 is excluded under Order 50 rules 1, 2 and 3 of the Civil Procedure Rules. Fifteen days remained in December and fifteen ran from 14th January 2025, so time expired around 29th January 2025, before the appeal was filed. Citing McFoy, a void act is irredeemable.
Whether an out-of-time appeal can be validated ex post facto
No. Following the Supreme Court in Nicholas Kiptoo Arap Salat v IEBC and County Executive of Kisumu, filing first and seeking extension later moves the court to remedy an illegality, which it cannot do.
The Supreme Court held that where the law prescribes a time, one must first seek extension before doing the act. Filing an appeal out of time and then seeking extension is presumptive and inappropriate; the document so filed is a nullity of no legal consequence. The High Court is bound by Article 163(7) and the doctrine of stare decisis to apply these Supreme Court dicta.
Whether Article 159(2)(d) or inherent jurisdiction can cure the late filing
Neither can. Late filing is substantive, not procedural, and inherent jurisdiction yields to express statutory provisions.
Relying on Attorney General v Bala, an out-of-time appeal strips the court of jurisdiction, so the oxygen principle cannot apply. Citing Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited (quoting Taparn v Roitei), inherent jurisdiction should not be invoked where a specific statutory provision covers the situation; it is not a panacea for breaches of substantive law.
Legal principles established
#- An appeal filed out of time without leave of the court is a nullity and void, incapable of being validated ex post facto
- An appeal filed out of time cannot be cured under Article 159(2)(d) because it deprives the court of jurisdiction
- Inherent jurisdiction cannot be invoked where clear statutory provisions exist and cannot be a shortcut for parties who disregard the law
Court orders
#- 1.The appeal be and is hereby struck out.
- 2.The application dated 11th of February, 2025 be and is hereby struck out.
- 3.Costs of the appeal and the application be and are hereby awarded to the 2nd respondent only.
- On appeal from
- Chief Magistrate's Court
- Not stated in the judgment
- Jurisdiction invoked
- Appellate/supervisory jurisdiction over the subordinate court; sections 79G and extension-of-time regime of the Civil Procedure Act (Cap 21) and the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matiri v M’Nkoroi & another; M’Nkoroi (Plaintiff); M’Iria & another (Defendant); Matiri (Applicant) (Appeal E010 of 2025) [2025] KEELC 1389 (KLR)", Case Analysis (2025). Appeal No E010 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1389/eng@2025-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.