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ELCStruck OutNot stated in the judgment· [2025] KEELC 8221 (KLR)

Shitoshe & 2 others v Kakai (Deceased) & 3 others (Environment and Land Appeal 042 of 2023) [2025] KEELC 8221 (KLR)

High Court of Kenya
19 November 2025
ANA. Nyukuri
622 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out an appeal filed months late because the appellants never asked for permission to appeal out of time.

What this practically means

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Executive summary

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This is a High Court ruling at Kakamega on the competence of an appeal from a subordinate court decision delivered on 23rd October 2023. When the appeal came up for directions on 25th February 2025, the respondents' counsel objected that it had been filed on 15th December 2023, beyond the 30-day period in section 79G of the Civil Procedure Act, without leave. The court directed parties to file submissions on competence only. The appellants contended that key documents (proceedings and a medical report) were missing from the court file, that they had sued their advocate Khayumbi for conflict of interest, and that the 4th respondent lacked locus standi. The 4th respondent, relying on First American Bank of Kenya Ltd v Gulab P. Shali & 2 Others [2002] EA 65, submitted the appeal offended section 75(a) of the Civil Procedure Act and that delay must be explained. The court framed a single issue: whether a competent appeal was before it. Citing section 79G, it held that appeals must be filed within 30 days unless good and sufficient cause is shown; the appeal was out of time, no application for extension of time was before the court, and no order permitting out-of-time filing existed. The appeal was therefore incurably incompetent and was struck out with costs to the 4th respondent. The ruling was delivered on 19th November 2025 by A. Nyukuri, Judge.

Key legal issues

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01

Competence of an appeal filed outside the 30-day period in section 79G of the Civil Procedure Act without leave

Holding

The appeal was incompetent and was struck out

Reasoning

Section 79G requires appeals from subordinate courts to be filed within 30 days unless the appellant shows good and sufficient cause for admission out of time. The decision appealed against was delivered on 23rd October 2023 and the appeal filed on 15th December 2023, beyond the 30-day period. No application for extension of time was before the court and no order permitting out-of-time filing was produced, leaving the appeal incurably incompetent.

p. 2

Legal principles established

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  • An appeal filed out of time without leave of court or an extension of time is incurably incompetent and will be struck out

Court orders

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  1. 1.Appeal struck out
  2. 2.Costs of the appeal to the 4th respondent
On appeal from
Subordinate court
Jurisdiction invoked
Section 79G of the Civil Procedure Act (appeals from subordinate courts to the High Court)

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, "Shitoshe & 2 others v Kakai (Deceased) & 3 others (Environment and Land Appeal 042 of 2023) [2025] KEELC 8221 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8221/eng@2025-11-19

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