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ELCStruck OutNotice of motion dated 3/10/2025 (Chuka ELC)· [2025] KEELC 7481 (KLR)

Julius & another v Ngaine & another (Environment and Land Miscellaneous Application E018 of 2025) [2025] KEELC 7481 (KLR)

Environment and Land Court
28 October 2025
BEB M Eboso
1,601 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court struck out the applicants' attempt to revive a stalled land appeal because their paperwork was incomplete and their affidavits were improperly signed.

What this practically means

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Executive summary

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The applicants, Peter Mutugi Julius and Eliphas Mbae Nthiiri, moved the Environment and Land Court at Chuka by notice of motion dated 3/10/2025 seeking enlargement of time to lodge an appeal against a ruling of the Principal Magistrate's Court at Chuka (Hon H. Mwendwa) dated 30/5/2023, which allowed a preliminary objection and struck out their adverse possession suit, and an order staying execution of that ruling. They attributed the delay of about two years and five months to the lower court registry's failure to supply typed proceedings and the ruling, and to one applicant's health and financial difficulties. The respondent, Humphrey Mutegi Ngaine, opposed, arguing the application lacked a draft memorandum of appeal and a copy of the impugned ruling, and that the supporting affidavits were not commissioned by a commissioner for oaths; he further contended the delay was inordinate and unexplained. The court framed two issues: whether the application met the criteria for extension of time and for stay of execution. Applying Section 16A of the Environment and Land Court Act, Section 79G of the Civil Procedure Act, and the principles in Salat, Mukora Mwangi and County Government of Murang'a v Njoroge, the court found the absence of a draft memorandum of appeal and the impugned ruling fatal, as it could not assess arguability. The affidavits, bearing only a law firm's rubber stamp, were also fatally defective. The application was struck out without consideration of the merits, with costs to the applicants.

Key legal issues

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01

Criteria for enlargement of time for lodging an appeal

Holding

The criteria in Salat and Mukora Mwangi were not satisfied because the applicants exhibited no draft memorandum of appeal or impugned ruling

Reasoning

The limitation period for appeals to the ELC is 30 days under Section 16A of the Environment and Land Court Act and Section 79G of the Civil Procedure Act, extendable on sufficient cause. Guided by Salat and Mukora Mwangi, the court must consider length and reason for delay, arguability and prejudice. Without a draft appeal or the impugned decision, the court cannot evaluate whether the intended appeal is arguable, a fatal omission that precludes consideration of the merits.

p. 3
02

Validity of affidavits supporting the application

Holding

Affidavits stamped by a law firm rather than commissioned before a commissioner for oaths are fatally defective, rendering the application defective

Reasoning

The supporting and supplementary affidavits bore only the rubber stamp of Igweta Muriithi & Co Advocates instead of attestation by a duly commissioned commissioner for oaths. The court treated this as a fatal defect justifying striking out the application without engaging the merits of the extension and stay pleas.

p. 3

Legal principles established

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  • An application for extension of time must be supported by a draft memorandum of appeal and a copy of the impugned decision, without which the court cannot assess arguability of the intended appeal
  • Affidavits must be commissioned by a commissioner for oaths; affidavits bearing only a law firm's rubber stamp are fatally defective

Court orders

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  1. 1.The application dated 3/10/2025 is struck out for being fatally defective
  2. 2.The applicants shall bear costs of the suit
Jurisdiction invoked
Section 16A of the Environment and Land Court Act and Section 79G of the Civil Procedure Act (discretion to enlarge time and stay execution)

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, "Julius & another v Ngaine & another (Environment and Land Miscellaneous Application E018 of 2025) [2025] KEELC 7481 (KLR)", Case Analysis (2025). Notice of motion dated 3/10/2025 (Chuka ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7481/eng@2025-10-28

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