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ELCAllowedNotice of motion dated 28/02/2025 (Appeal filed 31st January 2025)· [2025] KEELC 4589 (KLR)

Mackallah v Morintat & another (Land Case Appeal E004 of 2025) [2025] KEELC 4589 (KLR)

High Court of Kenya
19 June 2025
MMM.N. Mwanyale
570 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court struck out an appeal filed two months late, confirming that missing the 30-day appeal deadline without permission ends the appeal entirely.

What this practically means

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Executive summary

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The applicant, Samuel Leuru Morintat, moved the court by notice of motion dated 28/02/2025 seeking to strike out an appeal filed by the respondent, David Njomo Makallah, on 31/01/2025. The application argued that the trial court's judgment in Kilgoris MCELC No. 38/2019 was delivered on 22/10/2024, that the 30-day statutory window under section 79G of the Civil Procedure Act expired on or before 22/11/2024, and that the appeal was filed out of time and without leave, leaving the court without jurisdiction. The respondent, acting in person, filed a 40-paragraph replying affidavit explaining the delay but conceding both the delivery date of the judgment and the date of filing the appeal. He invoked Article 159(2)(d) of the Constitution, urging that procedural rules are handmaids of justice and that the application should be dismissed in favour of substantive justice. The court identified a single issue: whether the application was merited. Holding that section 79G is a substantive, not merely procedural, provision, and that the appeal was filed about two months late without leave, the court found it lacked jurisdiction to entertain the appeal. The application was allowed, the Memorandum of Appeal dated 31/01/2025 was struck out, and costs were awarded to the applicant. Judgment delivered at Kilgoris on 19 June 2025 by Hon. M.N. Mwanyale, Judge.

Key legal issues

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01

Whether an appeal filed outside the 30-day period under section 79G of the Civil Procedure Act without leave can be entertained

Holding

The appeal was filed about two months after the statutory period lapsed and without leave; the court lacks jurisdiction and the Memorandum of Appeal was struck out.

Reasoning

The trial court's judgment was delivered on 22/10/2024, and the appellant conceded these dates in his replying affidavit. The 30-day period under section 79G therefore lapsed on or before 22/11/2024. The appeal was lodged on 31/01/2025, roughly two months late, and no leave to file out of time was sought or obtained. The court held section 79G is substantive, so non-compliance robs it of jurisdiction, and the appeal was struck out.

p. 2

Legal principles established

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  • Section 79G of the Civil Procedure Act is a substantive provision of law, not merely procedural, and an appeal filed outside the 30-day period without leave deprives the court of jurisdiction.

Court orders

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  1. 1.The Memorandum of Appeal dated 31/01/2025 is struck out
  2. 2.Costs of the application awarded to the Applicant

Authorities

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Legislation

  • Civil Procedure Actsection 79G
  • Constitution of KenyaArticle 159(2)(d)
Jurisdiction invoked
Appellate jurisdiction of the High Court over subordinate courts; Civil Procedure Act section 79G

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mackallah v Morintat & another (Land Case Appeal E004 of 2025) [2025] KEELC 4589 (KLR)", Case Analysis (2025). Notice of motion dated 28/02/2025 (Appeal filed 31st January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4589/eng@2025-06-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.