Kemei v Chebii & 3 others (Environment and Land Appeal E016 of 2024) [2025] KEELC 3562 (KLR)
The bottom line
#A Kenyan court ruled that an appeal filed the day after a public holiday deadline is on time, saving the appeal from being struck out.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal filed after the 30-day period where the last day fell on a public holiday is out of time
The appeal filed on 2nd April 2024 was within time because 29th March 2024 (the last day) was Good Friday, a public holiday, and the holiday period ended on 1st April 2024
The court accepted the Appellant's explanation that the 30-day period for filing the appeal lapsed on Good Friday, a public holiday which ran until 1st April 2024, making 2nd April 2024 the earliest possible day for filing. The court held the Appellant could not be penalized for a delay occasioned by the last day of the statutory period falling on a public holiday, and found sufficient reason for the filing date.
Whether the Memorandum of Appeal should be struck out for want of leave to file out of time
The application to strike out lacked merit; striking out is a draconian remedy exercised discretionarily based on the peculiar circumstances of each case
Relying on Tome & Another v Attorney General & 2 Others, the court noted that striking out a pleading is draconian and only proper in plain and outright instances. Since the Appellant had demonstrated sufficient reason for the filing date, the application lacked merit and was dismissed. The court also directed the Appellant to fast-track the Record of Appeal within 30 days, failing which the appeal stands dismissed.
Legal principles established
#- Striking out a pleading is a draconian act which may only be resorted to in plain and outright instances, and the power to strike out an appeal is discretionary and depends on the peculiar circumstances of each case
- Where the statutory period for filing an appeal lapses on a public holiday, the appellant cannot be penalized for filing on the next working day
Court orders
#- 1.The Notice of Motion dated 25th November 2024 is dismissed with costs in the cause
- 2.The Appellant is to fast-track the filing of the Record of Appeal within 30 days failing which the Appeal stands dismissed
- On appeal from
- Not stated (trial court ruling by Hon B. Ochieng delivered 28th February 2024)
- Not stated
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts (appeal under Section 79G of the Civil Procedure Act regime referenced by the parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kemei v Chebii & 3 others (Environment and Land Appeal E016 of 2024) [2025] KEELC 3562 (KLR)", Case Analysis (2025). Not stated in the judgment (ELC Appeal, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3562/eng@2025-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.