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ELCStruck OutKakamega CMCC Appeal No. 934 of 2018 (Memorandum of Appeal dated 8th August 2023)· [2025] KEELC 4794 (KLR)

Mapesa v Amakobe (Environment and Land Appeal E013 of 2023) [2025] KEELC 4794 (KLR)

High Court of Kenya
25 June 2025
ANA. Nyukuri
2,293 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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The High Court struck out a land appeal filed 58 days late without permission, confirming Kenya's strict 30-day appeal deadline must be followed or leave obtained first.

What this practically means

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Executive summary

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This was a first appeal to the High Court at Kakamega against the judgment of Hon. Dolphina Alego (SPM) in Kakamega CMCC No. 934 of 2018 delivered on 12th June 2023, in which the trial court allowed the respondent's claim and ordered the appellant's eviction from parcel No. Butsotso/Shibeye/5026. The respondent, as plaintiff, had pleaded that he purchased the suit property in 2003 from John Musungu Maresa and was registered as proprietor on 14th September 2017, but that the appellant, a brother of the vendor, trespassed on the land in 2012. The appellant defended on the basis that he was an occupant by family arrangement, that eight family members were buried on the land, and that he had been allocated a different parcel. At the appeal, both parties filed written submissions. The appellant urged that the trial court's decision was against the weight of evidence and that the respondent was not a bona fide purchaser, citing authorities on the first appellate court's duty and on costs. The respondent countered that the appeal, filed on 9th August 2023 against a judgment delivered on 12th June 2023, was out of the 30-day period prescribed by Section 79G of the Civil Procedure Act and without leave. The court framed two issues: competence of the appeal and whether the trial court correctly found the claim proved. It held that Section 79G is mandatory, that no leave for the 58-day delay was demonstrated, and that an appeal filed out of time without leave is fatally incompetent. The appeal was struck out with costs to the respondent, leaving the trial court's judgment undisturbed.

Key legal issues

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01

Whether an appeal filed out of time without leave of court is competent

Holding

The appeal, filed 58 days after judgment without leave, was fatally incompetent and was struck out

Reasoning

Section 79G of the Civil Procedure Act requires appeals from subordinate courts to be filed within 30 days, extendable only on demonstration of good and sufficient cause. The memorandum of appeal was filed on 9th August 2023 against a judgment delivered on 12th June 2023, a delay of 58 days. The appellant demonstrated no leave of court for the extension even after being served with the respondent's submissions. The provision is mandatory, leaving the court no discretion to hear such an appeal.

p. 5
02

Whether the trial court was wrong in concluding that the respondent proved his claim

Holding

Not determined; the issue became academic as the appeal was struck out for incompetence

Reasoning

The court framed this second issue for determination but, having found the appeal fatally incompetent for want of leave to file out of time, struck it out and never reached the merits of the trial court's findings on ownership and eviction. The trial magistrate's judgment allowing the respondent's claim therefore stands undisturbed.

p. 5

Legal principles established

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  • Section 79G of the Civil Procedure Act is mandatory as to the 30-day period for filing appeals; an appeal filed out of time without leave is fatally incompetent and must be struck out

Court orders

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  1. 1.The appeal filed out of time without leave of court is found to be incurably incompetent and is struck out with costs to the respondent
On appeal from
Senior Principal Magistrate's Court, Kakamega
Kakamega CMCC No. 934 of 2018
Jurisdiction invoked
First appellate jurisdiction over subordinate court (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, "Mapesa v Amakobe (Environment and Land Appeal E013 of 2023) [2025] KEELC 4794 (KLR)", Case Analysis (2025). Kakamega CMCC Appeal No. 934 of 2018 (Memorandum of Appeal dated 8th August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4794/eng@2025-06-25

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