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ELCStruck OutMalindi ELC Appeal (from Malindi CM Misc App E028 of 2023)· [2025] KEELC 6477 (KLR)

Catholic Diocese of Malindi Registered Trustees v Mlewa & 3 others (Environment and Land Appeal E029 of 2023) [2025] KEELC 6477 (KLR)

Environment and Land Court
30 September 2025
MNMwangi Njoroge
5,708 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land appeal because the Diocese never got court permission to appeal before filing it.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Malindi against a ruling of the Chief Magistrate (Hon. James N. Mwaniki) dated 6th December 2023, dismissing the appellant's notice of motion dated 16th October 2023. That motion had sought joinder of the appellant and Robert Muriithi Githinji to Miscellaneous Application E028 of 2023 (joinder was granted), stay, setting aside and discharge of ex parte orders of 11th October 2023 directing the Land Registrar Kilifi to issue a title for Kilifi/Jimba/42 and register a 2006 decree, and striking out of the miscellaneous application as res judicata, time-barred and an abuse of process. The appellant, registered proprietor of subdivisions of the original parcel, argued the Magistrate had sat as an appellate court over superior court decisions (ELC JR Misc App 1 of 2016, ELC JR Misc App 91 of 2017 and Malindi ELC Petition 18 of 2022), lacked jurisdiction to order rectification, and that the respondents' execution was statute-barred. The respondents and interested party defended the lower court's jurisdiction and competence. Before reaching the merits, the ELC (Mwangi Njoroge, J) addressed the second respondent's objection that the appeal required leave under Section 75 CPA and Order 43 CPR. The court found the orders appealed from were discretionary and not within the categories appealable as of right; orders under Order 22 rule 22 were expressly excluded. Leave was therefore required and not obtained. The court struck out the appeal entirely and, because the objection was raised late, ordered each party to bear their own costs. The merits, including res judicata and limitation, were not determined.

Key legal issues

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01

Competency of the appeal for want of leave

Holding

The appeal was from discretionary orders not appealable as of right under Order 43 rule 1; leave was required and not obtained; the appeal was incompetent and was struck out

Reasoning

The court examined Section 75 CPA and Order 43 CPR and found that the orders appealed from (refusal to set aside, stay and strike out) fell under sections 1A, 1B and 3A CPA and were discretionary. Orders under Order 22 rule 22 are excluded from orders appealable as of right, and the Limitation of Actions Act provisions cited do not confer a right of appeal. Leave was therefore mandatory.

p. 11

Legal principles established

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  • An appeal from an order not listed in Order 43 rule 1 of the Civil Procedure Rules lies only with leave of court, and an appeal filed without such leave is incompetent
  • Where a court finds it is without jurisdiction it must down its tools, and an objection going to jurisdiction must be addressed whenever raised

Court orders

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  1. 1.The appeal is struck out entirely
  2. 2.Each party shall bear their own costs of the appeal
On appeal from
Chief Magistrate's Court, Malindi
Malindi CM Miscellaneous Application E028 of 2023
Jurisdiction invoked
Sections 75 of the Civil Procedure Act and Order 43 rule 1 of the Civil Procedure Rules 2010 (appeals from orders)

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, "Catholic Diocese of Malindi Registered Trustees v Mlewa & 3 others (Environment and Land Appeal E029 of 2023) [2025] KEELC 6477 (KLR)", Case Analysis (2025). Malindi ELC Appeal (from Malindi CM Misc App E028 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6477/eng@2025-09-30

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