Ondabu & another v On’gayo (Environment and Land Appeal E007 of 2022) [2025] KEELC 2924 (KLR)
The bottom line
#The Environment and Land Court in Kisii dismissed an attempt to kill a land appeal, confirming appeals filed on the next working day count as timely.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal was filed within the 30 days prescribed by Section 79G of the Civil Procedure Act
The appeal was filed in time. Judgment was delivered 25 February 2022; the 30th day was Sunday 27 March 2022; by Order 50 Rule 3 filing on Monday 28 March 2022 was in time.
The court applied Order 50 Rule 8, excluding the day of judgment and including the last day, to compute the 30th day as 27 March 2022, a Sunday. Since courts do not work on Sundays, Order 50 Rule 3 extended the time to the next working day, Monday 28 March 2022. The court found the electronic receipt showing payment at 16.07 hours on 28 March 2022 proved filing on that date notwithstanding the erroneous 29 March 2022 receiving stamp.
Whether the appeal, filed by M/s J.O Soire & Company Advocates who were not on record below, offended Order 9 Rule 9
Order 9 Rule 9 does not apply to appeals; the new advocate was properly on record in the appeal.
Relying on Francis Omondi Odhiambo, Magereza Savings & Credit Co-operative Society, Wilfred Mbogo and the Court of Appeal in Tobias M. Wafubwa, the court held that instructions in the lower court are exhausted at the conclusion of the suit, and an appeal is fresh, independent proceedings in which a party may appoint any advocate without leave or notice of change. The rule targets litigants dismissing advocates at the execution stage to deny them fees.
Whether the appeal should be summarily dismissed for raising unpleaded issues, being an abuse of process, or for non-service
Those grounds could not be determined on the application; the merits belong to the hearing of the appeal, and service objections were moot since the appeal had been served and admitted for hearing.
The court held that the complaint that the appeal raised issues (Land Control Board consent) never pleaded at trial goes to the substance of the appeal and must await its hearing; delving into it on a motion would amount to hearing the appeal through an application. The service complaint also failed because the appeal had been served and admitted.
Legal principles established
#- Where the last day for filing an appeal falls on a Sunday or a day the offices are closed, the act may be done on the next day the offices open, under Order 50 Rule 3.
- Order 9 Rule 9 does not apply to the filing of appeals; an appeal is fresh and independent proceedings which a new advocate may institute without leave or a notice of change of advocates.
- However, for proceedings in the lower court file after judgment (including execution), Order 9 Rule 9 compliance remains necessary before the appeal advocate can take over.
- Days not expressed to be clear days are reckoned exclusively of the first day and inclusively of the last day (Order 50 Rule 8).
Court orders
#- 1.The application dated 19 July 2024 is dismissed with costs.
- 2.Observation that, absent compliance with Order 9 Rule 9, the advocate on the appeal file cannot file anything in the lower court file, and the advocate on record up to judgment remains on record for lower court proceedings including execution.
- On appeal from
- Chief Magistrates' Court
- Suit filed 31 January 2020 (number not stated)
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts; application brought under Section 79G of the Civil Procedure Act and Order 9 Rule 9 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Faith Njeri Ndungu & 3 others v Lydia Wangechi Mutegi & another[2026] KEELC 5550 (KLR)23 Sept 2026followed
Cite this brief
#Cite this brief
Caselaw, "Ondabu & another v On’gayo (Environment and Land Appeal E007 of 2022) [2025] KEELC 2924 (KLR)", Case Analysis (2025). Not stated in the extract (appeal from Chief Magistrates' Court suit filed 31 January 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2924/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.