Munyao & another v Kariuki (Environment and Land Appeal E013 of 2024) [2025] KEELC 5826 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an appeal filed seven months late because the appellants never sought permission to file out of time.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal filed 240 days after the decree, without leave for extension of time, should be struck out
Yes - the appeal was filed out of time and without leave, was procedurally defective and was struck out.
Section 79G mandates filing within 30 days of the decree, extendable only upon a formal application showing good and sufficient cause. The decree was issued on 23rd January 2024 and served on 25th January 2024; the appeal was filed on 27th September 2024, 214 days late. The Appellants neither sought leave nor explained the delay and did not respond to the application, leaving the court no basis to exercise its discretion in their favour, and the Respondent would be prejudiced.
Whether the court's power to strike out pleadings should be exercised on these facts
Yes - despite the power being discretionary and exercised sparingly, the appeal here was plainly instituted contrary to mandatory provisions.
The court reaffirmed that striking out is a draconian act to be used sparingly and cautiously, citing D.T. Dobie, Co-operative Merchant Bank and Yaya Towers. However, the defect here was not the merits of the appeal but its competence: it was filed without leave after an unexplained eight-month delay. The salat principles on extension of time place the burden on the party seeking indulgence, which the Appellants failed to discharge.
Costs of the application
Costs follow the event under Section 27(1) of the Civil Procedure Act; the successful Respondent is entitled to the costs of the application and the appeal.
The court applied the well-established principle that costs follow the event and are discretionary, citing Jasbir Rai Singh and Cecilia Karuru Ngayu for the proposition that costs compensate the successful party rather than penalize the losing party. The application succeeded and the appeal was struck out, so the Respondent was entitled to costs.
Legal principles established
#- Section 79G of the Civil Procedure Act imposes a mandatory 30-day period for filing appeals from subordinate courts, subject to extension for good and sufficient cause on a formal application.
- An appeal filed out of time without leave or any explanation for the delay is incompetent and liable to be struck out.
Court orders
#- 1.That the Notice of Motion application dated 6th March 2025 be and is hereby found to be merited and thus the appeal is struck out.
- 2.That the costs of the Notice of Motion application dated 6th March 2025 together with the costs to the appeal are hereby awarded to the Respondent.
- On appeal from
- Principal Magistrate's Court, Kwale
- Kwale MCCC Suit No. 66 of 2020
- Jurisdiction invoked
- Appeal from the subordinate court to the Environment and Land Court under Section 79G of the Civil Procedure Act, Cap. 21; application under Sections 1A, 1B, 3A and 79G
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munyao & another v Kariuki (Environment and Land Appeal E013 of 2024) [2025] KEELC 5826 (KLR)", Case Analysis (2025). ELC Appeal No. 13 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5826/eng@2025-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.