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ELCStruck Out

Kiruthu v Konje (Environment and Land Appeal E004 of 2024) [2025] KEELC 6934 (KLR)

Environment and Land Court
8 October 2025
BEB M Eboso
462 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out an appeal filed without prior leave, confirming leave is mandatory when challenging execution orders on a notice to show cause.

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 Meru, presided over by B M Eboso, ELC Judge, against a ruling of the Chief Magistrate's Court at Meru delivered on 16 January 2024. The lower court had allowed execution of its decree following a notice to show cause taken out by the respondent against the appellant under Order 22 rule 17 of the Civil Procedure Rules. The appellant filed the appeal without prior leave of the court. At the admission stage, the court raised, on its own motion, the question whether leave to appeal was necessary, and directed parties to address it on that jurisdictional issue. On 7 October 2025 counsel for the appellant submitted that no leave was required, while counsel for the respondent maintained that the impugned decision was made under Order 22 and that leave was required. The court held that under section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules, only decisions under Order 22 rules 25, 57, 61(3) and 73 are appealable without leave; an appeal against an order made on a notice to show cause requires prior leave. Since none had been sought or obtained, the court lacked jurisdiction and struck out the appeal as fatally defective. Applying section 27 of the Civil Procedure Act, costs were awarded to the respondent, to be borne by the appellant. Judgment delivered at Meru on 8 October 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether leave to appeal was required before filing this appeal against the ruling on the notice to show cause
  2. 2.Whether, in the absence of prior leave, the court has jurisdiction to entertain the appeal
  3. 3.Who should bear the costs of the appeal

Key legal issues

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01

Whether leave to appeal was required for an appeal against a ruling on a notice to show cause under Order 22 rule 17

Holding

Leave was required because only orders under Order 22 rules 25, 57, 61(3) and 73 are appealable without leave; the impugned ruling was not among them

Reasoning

Section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules identify orders appealable as of right. Within Order 22, only decisions under rules 25, 57, 61(3) and 73 need no leave. The notice to show cause was taken out under Order 22 rule 17, so the appeal required prior leave. None was sought or obtained, so the court lacked jurisdiction.

p. 2
02

Consequence of filing an appeal without the requisite leave

Holding

The appeal is fatally defective and stands to be struck out

Reasoning

Because the appellant did not seek or obtain leave before instituting the appeal, the court had no jurisdiction to entertain it. A defect that goes to jurisdiction renders the appeal a nullity, and the proper course is to strike it out rather than consider its merits.

p. 2

Legal principles established

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  • An appeal challenging an order made on a notice to show cause under Order 22 rule 17 of the Civil Procedure Rules requires prior leave of the court; without such leave the appellate court has no jurisdiction

Court orders

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  1. 1.The appeal is struck out
  2. 2.The appellant shall bear costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

BE
majority

Wrote the judgment

On appeal from
Chief Magistrate Court at Meru
Jurisdiction invoked
Appellate jurisdiction of the High Court/ELC under section 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules (leave to appeal requirement)

Relief refused

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Entertainment of the appeal on the merits

The appeal was filed without the prior leave of the court which was a jurisdictional prerequisite

p. 2

Costs

The appellant shall bear costs of the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

an appeal challenging an order made on a notice to show cause requires prior leave of the court
p. 2Leave to appeal - Order 22 notices to show cause
this court has no jurisdiction to entertain this appeal in the absence of prior leave. Put difierently, the appeal is fatally defective and stands to be struck out.
p. 2Jurisdictional defect - striking out
Consequently, the appellant shall bear costs of the appeal. It is so ordered.
p. 2Final orders - costs

Issues in the judgment

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minor

The judgment does not state the case number, the names of the parties, or the lower court case number; the appellant and respondent are unnamed

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kiruthu v Konje (Environment and Land Appeal E004 of 2024) [2025] KEELC 6934 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6934/eng@2025-10-08

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