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ELCOtherNot stated in the judgment· [2025] KEELC 8383 (KLR)
Gicheha v Waitherero & 6 others (Environment and Land Case 260 of 2017) [2025] KEELC 8383 (KLR)
Environment and Land Court of Kenya (station: Nakuru)
3 December 2025
834 words in judgment
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·~3 min to read original · ~4 min briefThe bottom line
#If you never filed a Notice of Appeal, only Kenya's Court of Appeal—not the High Court—can grant you permission to appeal out of time.
What this practically means
#Executive summary
#This ruling by M. A. Odeny, Judge, at Nakuru, determined the 1st Defendant's Notice of Motion dated 12th June 2025 seeking a stay of execution of a judgment delivered in June 2022, leave to appeal out of time, and any other directions. The applicant, Joseph Ngure Gicheha, deponed through an affidavit that neither he nor his representatives were available when judgment was entered on 2nd June 2022, that no stay orders were granted, and that he only obtained the judgment in May 2025, blaming miscommunication and facts beyond his knowledge for the failure to file an appeal. The plaintiff, Serah Waitherero, opposed the application in a replying affidavit, noting it was brought three years post-judgment, that nothing had been paid on the decree, and asked that the decretal sum of Ksh 6,489,320/- be deposited as security if any stay were granted. Both sides filed submissions, with the applicant relying on stay-pending-appeal authorities and the plaintiff relying on Order 42 Rule 6 of the Civil Procedure Rules. The court framed a single issue: whether it had jurisdiction to entertain the application for extension of time. Applying the Supreme Court's Salat principles, the court noted those principles presuppose a filed Notice of Appeal. Since the applicant had filed none, jurisdiction to grant leave to appeal out of time lay with the Court of Appeal. The court accordingly 'downed its tools' and struck out the application, with each party bearing their own costs.
Key legal issues
#01
Jurisdiction to entertain an application for extension of time to appeal where no Notice of Appeal was filed
Holding
The court lacked jurisdiction and struck out the application
Reasoning
The applicant sought leave to appeal out of time against a judgment entered on 2nd June 2022 but had never filed a Notice of Appeal. The court held that the Salat principles for extension of time would apply only where a Notice of Appeal exists; absent one, the Court of Appeal, not this court, has jurisdiction. The court therefore declined to exercise any discretion and struck out the application.
p. 3
Legal principles established
#- Extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court
- Where no Notice of Appeal has been filed, the court with jurisdiction to grant leave to appeal out of time is the Court of Appeal
Court orders
#- 1.The Notice of Motion dated 12th June 2025 struck out
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution); jurisdiction found to lie with the Court of Appeal for extension of time absent a filed Notice of Appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gicheha v Waitherero & 6 others (Environment and Land Case 260 of 2017) [2025] KEELC 8383 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8383/eng@2025-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.