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ELCDismissedNotice of Motion dated 28th May 2025 (arising from Kimilili SPM Land Case No. 43 of 2018)· [2025] KEELC 7654 (KLR)

Sioro v Chemao & another (Environment and Land Miscellaneous Application E020 of 2025) [2025] KEELC 7654 (KLR)

Environment and Land Court
6 November 2025
ECE.C CHERONO
1,974 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to allow a landowner to appeal nearly three years late, ruling that choosing review ends the appeal option.

What this practically means

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Executive summary

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The Applicant, who was the plaintiff in Kimilili SPM Land Case No. 43 of 2018 (John Wafula Sioro v Jamin Wanyonyi Chemao & Another), sought leave by Notice of Motion dated 28th May 2025 to appeal out of time against a judgment and decree delivered in the Respondent's favour in November 2022. He blamed his erstwhile advocate, to whom he said he paid Kshs. 20,000/= on 13th April 2023 to lodge the appeal. The Respondent opposed, showing that the Applicant had twice sought review of the same judgment (applications dated 18th April 2023 and 21st February 2025), both dismissed, and had also filed a suit at Bungoma Chief Magistrate's Court which was struck out as res judicata. The Applicant filed no submissions. Considering section 79G of the Civil Procedure Act, the court (E.C. Cherono, ELC Judge) held that the payment receipt was not an instruction to appeal, that the advocate had not been reported to the LSK Disciplinary Committee, and that a delay of almost three years was inordinate, inexplicable and unexplained. Applying the Court of Appeal decision in The Chairman, Board of Governors Highway Secondary School v William Mmosi Moi, the court further held that having pursued review to its conclusion, the Applicant had exhausted his options and could not thereafter pursue an appeal over the same orders. The motion was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the delay in filing the appeal was excusable

Holding

The delay was inordinate and unexplained; the Applicant did not report his advocate to the LSK Disciplinary Committee and a payment receipt is not an instruction to appeal

Reasoning

The judgment was delivered on 10th November 2022 and the Applicant only paid counsel Kshs. 20,000/= on 13th April 2023, after the 30-day period had lapsed. There was no written instruction to appeal and no complaint to the LSK Disciplinary Committee. The court found nearly three years' delay inordinate, inexplicable and unexplained.

p. 4
02

Whether the prior pursuit of review bars the intended appeal

Holding

Having pursued review of the judgment twice, both applications dismissed, the Applicant exhausted his options and cannot now seek leave to appeal over the same decision

Reasoning

Relying on The Chairman, Board of Governors Highway Secondary School v William Mmosi Moi, the court agreed that once the review option is exercised and pursued to conclusion, no appellate jurisdiction over the same orders remains; the options cannot be pursued one after the other.

p. 4

Legal principles established

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  • An appeal from a subordinate court must be filed within 30 days unless the appellant shows good and sufficient cause for filing out of time
  • Having pursued review of a decree to its conclusion, a party cannot thereafter pursue an appeal over the same orders; both options cannot be pursued one after the other

Court orders

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  1. 1.The Notice of Motion application dated 28th May 2025 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 44

Cases cited (3)

  • HA V LB
    (2022) eKLR
  • The Chairman, Board Of Governors Highway Secondary School V William Mmosi Moi
    Civil Application No. 277 Of 2005 (UR)
  • Yani Haryanto Vs. E. D. & F Man (Sugar) Ltd
    Civil Appeal No. 122 Of 1992 (UR)
On appeal from
Kimilili Principal Magistrate's Court (SPM Land Case No. 43 of 2018)
43 of 2018
Jurisdiction invoked
Section 79G of the Civil Procedure Act (leave to appeal out of time)

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, "Sioro v Chemao & another (Environment and Land Miscellaneous Application E020 of 2025) [2025] KEELC 7654 (KLR)", Case Analysis (2025). Notice of Motion dated 28th May 2025 (arising from Kimilili SPM Land Case No. 43 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7654/eng@2025-11-06

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