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ELCStruck OutAppeal arising from SPM Milimani SCCCOMM No. E5297/2024 and Makindu SPM ELC No. 48 of 2019 (memorandum of appeal dated 19th May 2025)· [2025] KEELC 6499 (KLR)

Maundu v Ngui (Environment and Land Appeal E014 of 2025) [2025] KEELC 6499 (KLR)

High Court of Kenya
1 October 2025
EOE. O. Obaga
623 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was a ruling on a preliminary objection by the Respondent dated 6th August 2025 seeking striking out of the Appellant's memorandum of appeal dated 19th May 2025. The appeal challenged a ruling delivered on 10th April 2025 by Hon. Evans Mbicha, Senior Principal Magistrate at Makindu, in Makindu SPM ELC No. 48 of 2019. The Respondent argued the appeal was filed out of time and without leave contrary to Section 79G of the Civil Procedure Act, depriving the court of jurisdiction, and was further incompetent for purporting to appeal from two separate suits. Counsel for the Appellant, Ms. Njagi, conceded the appeal was filed outside the 30-day period, attributing this to oversight, and indicated she had filed an amended notice of motion dated 12th August 2025 seeking leave to file the appeal out of time. The court, per Hon. E. O. Obaga, Judge, held that in the absence of a certificate from the lower court certifying time requisite for preparation and delivery of the order, the appeal filed on 19th May 2025 was outside the 30-day period under Section 79G and without leave. The court declined to ignore the preliminary objection and entertain the amended motion seeking leave to cure the defect. The memorandum of appeal was found incompetent and struck out with costs to the Respondent. The second ground of the objection, concerning the appeal spanning two suits, was not expressly determined.

Key legal issues

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01

Timeliness of appeal under Section 79G of the Civil Procedure Act

Holding

The appeal filed on 19th May 2025 against a ruling delivered on 10th April 2025 was out of time without leave and was therefore incompetent and liable to be struck out

Reasoning

The court computed the 30-day statutory period from the date of the ruling. No certificate from the lower court certified any time as requisite for preparation and delivery of the order, so no extension applied. Counsel for the appellant conceded the appeal was filed out of time. A subsequent application for leave filed after the preliminary objection could not retroactively validate the appeal.

p. 2
02

Whether the court could entertain the amended motion for extension of time notwithstanding the preliminary objection

Holding

The court declined to ignore the pending preliminary objection and hear the amended notice of motion seeking leave to file the appeal out of time

Reasoning

The appellant's counsel conceded the late filing and sought to cure it through an amended notice of motion dated 12th August 2025. The court held that since the preliminary objection had already been filed, it could not bypass it and proceed to determine the motion seeking leave to cure the very defect complained of.

p. 2

Legal principles established

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  • Appeals from subordinate courts to the High Court must be filed within 30 days of the decree or order, with any certified preparation time excluded, and may only be admitted out of time on good and sufficient cause
  • Where no certificate is issued by the lower court as to time requisite for preparation and delivery of the order, the 30-day period is not extended, and an appeal filed beyond it without leave is incompetent

Court orders

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  1. 1.The memorandum of appeal dated 19th May 2025 is found incompetent and is struck out
  2. 2.Costs of the preliminary objection to the Respondent
On appeal from
Makindu Senior Principal Magistrate's Court
Makindu SPM ELC No. 48 of 2019
Jurisdiction invoked
Appellate jurisdiction of the High Court over subordinate courts under Section 79G of the Civil Procedure Act

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, "Maundu v Ngui (Environment and Land Appeal E014 of 2025) [2025] KEELC 6499 (KLR)", Case Analysis (2025). Appeal arising from SPM Milimani SCCCOMM No. E5297/2024 and Makindu SPM ELC No. 48 of 2019 (memorandum of appeal dated 19th May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6499/eng@2025-10-01

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