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ELCAllowedNot stated in judgment· [2025] KEELC 4954 (KLR)

Jelimo v Kemboi & another (Environment & Land Case 78 of 2008) [2025] KEELC 4954 (KLR)

Environment and Land Court
2 July 2025
425 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kitale declared a Kenyan notice of appeal a nullity because no appeal was filed within 60 days.

What this practically means

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Executive summary

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Following a ruling dated 21/2/2025, the defendants filed a notice of appeal dated 6/3/2025 under Rule 75 of the Court of Appeal Rules, and later a notice of withdrawal of the intended appeal dated 25/4/2025 under Rule 83, asking the court to mark the notice of appeal as withdrawn. The court directed the parties to file submissions on whether it had jurisdiction to grant that request. The defendants argued that since no memorandum of appeal and record of appeal were filed within 60 days, the appeal was deemed withdrawn, relying on Beijing Industrial & Researching Institute v Lagoon Development Ltd. The court reviewed Rule 83 and Rule 82(1) of the Court of Appeal Rules, which require the memorandum of appeal, fees and security for costs to be lodged within 60 days of filing the notice of appeal, unless an application for proceedings is made within 30 days. Citing Mae Properties Ltd v Joseph Kibe, the court held that a notice of appeal dies a natural death after expiry of 60 days unless leave to extend time is obtained from the Court of Appeal; Charles Wanjohi Waithaka affirmed the rationale of the 60-day timeline as constitutional, statutory and rule-based, aimed at timely, just, efficient and cost-effective justice. Applying Macfoy v United Africa Co. Ltd on nullities, the court concluded that the notice of appeal dated 6/3/2025 was a nullity and confirmed it as such. The judgment does not record any costs order or identify the case title and number.

Key legal issues

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01

Whether a notice of appeal survives after failure to file the memorandum and record of appeal within 60 days

Holding

The notice of appeal died a natural death on expiry of the 60-day period and is a nullity, which the court confirmed.

Reasoning

The court relied on Rule 83 of the Court of Appeal Rules, under which an appeal not instituted within 60 days is deemed withdrawn, and Rule 82(1) on what constitutes filing. Authorities including Mae Properties and Beijing Industrial establish that a notice of appeal dies unless leave to extend time is obtained. Applying Macfoy, the lapsed notice was a nullity which the court could declare.

p. 2

Legal principles established

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  • A notice of appeal that is not followed by institution of the appeal within 60 days under Rule 83 lapses and becomes a nullity.

Court orders

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  1. 1.The notice of appeal dated 6/3/2025 is declared a nullity and it is so confirmed

Authorities

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Legislation

  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 83
  • Court of Appeal RulesRule 82(1)

Cases cited (4)

  • Beijing Industrial & Researching Institute v Lagoon Development Ltd
    [2015] eKLR
  • Mae Properties Ltd v Joseph Kibe
    [2017] eKLR
  • Charles Wanjohi Waithaka v Githinji Ngure & another
    [2016] eKLR
  • Macfoy v United Africa Co. Ltd
    [1961] 3 ALL ER 1169
Jurisdiction invoked
Inherent jurisdiction of the court to declare a notice of appeal a nullity, arising from the defendants' application under Rule 83 of the Court of Appeal Rules

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, "Jelimo v Kemboi & another (Environment & Land Case 78 of 2008) [2025] KEELC 4954 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4954/eng@2025-07-02

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