Mbaka (Suing as Administrator Ad Litem of the Estate of the Late Margaret Njoki Mbaka alias Njoki Mbaka) v Bizer & another (Environment and Land Appeal E015 of 2024) (Environment and Land) [2025] KEELC 3029 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether an appeal filed out of time without leave is properly struck out on a preliminary objection where a application for extension of time is pending
The preliminary objection lacked merit because the Appellant had, after filing the appeal out of time, moved the court for leave to have it deemed as filed, which the proviso to Section 79G permits
The court applied Section 79G and its proviso, relying on Ndungu Muhindi James and APA Insurance to hold that the correct sequence is to file the appeal first and then seek leave to admit it out of time. Since Miscellaneous Application No. E014 of 2024 sought exactly that leave, the objection based purely on lateness failed. The objection was unopposed by replying affidavit but the submissions and pleadings showed the pending application.
Whether written submissions can be considered absent a replying affidavit
The court noted the Appellant's submissions would not be considered in the absence of a replying affidavit, per Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli
Relying on the Supreme Court's holding, the court treated the replying affidavit as the foundational pleading; submissions without it are of no effect. Consequently only the 1st Respondent's unopposed objection was determined on merit, though the court still found it lacked merit on the pleadings and pending application.
Legal principles established
#- An intending appellant seeking admission of an appeal out of time under the proviso to Section 79G of the Civil Procedure Act must first file the appeal and then seek leave for it to be admitted out of time; leave is not to be sought for a non-existent appeal
Court orders
#- 1.The 1st Respondent's preliminary objection is dismissed
- 2.Each party shall bear its costs
- On appeal from
- Senior Principal Magistrate's Court (Hon Y.M. Barasa, SPM)
- CMCELC No. E028 of 2023
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (appeal from subordinate court to the High Court/ELC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbaka (Suing as Administrator Ad Litem of the Estate of the Late Margaret Njoki Mbaka alias Njoki Mbaka) v Bizer & another (Environment and Land Appeal E015 of 2024) (Environment and Land) [2025] KEELC 3029 (KLR)", Case Analysis (2025). Naivasha ELC Appeal dated 13th September, 2024 (filed 26th September, 2024); appeal from CMCELC No. E028 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3029/eng@2025-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.