Odhiambo v Okech (Environment and Land Appeal 004 of 2023) [2026] KEELC 102 (KLR)
The bottom line
#A Kenyan court struck out an entire appeal because the appellant missed a 7-day deadline to file the Memorandum of Appeal after getting permission to appeal late.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is a competent appeal on record upon which a Notice to Show Cause can issue
- 2.If so, whether the Appellant has shown sufficient cause to have the appeal spared from dismissal for want of prosecution
Key legal issues
#Whether a competent appeal existed upon which the Notice to Show Cause could issue
No competent appeal existed. Leave to file the appeal out of time was granted conditionally (Memorandum of Appeal within seven days); the Appellant never filed the Memorandum of Appeal within that period or thereafter, so all subsequent steps were a nullity.
The court examined both the appeal and miscellaneous files. Leave was granted on 24th May 2023 on condition a fresh Memorandum of Appeal be filed within seven days. The Appellant filed only a draft memorandum with the out-of-time application and later a Record of Appeal (about five months later), never paying for or filing a Memorandum within the condition period. Non-compliance with the leave order meant the appeal never came into existence; all steps taken thereafter were based on a non-existent appeal.
Whether the Appellant showed sufficient cause to avoid dismissal for want of prosecution
The question fell away because there was no competent appeal; the claimed registry mix-up did not excuse the failure to file the Memorandum of Appeal within the seven days.
The Appellant blamed confusion between the appeal and miscellaneous files placed before two judicial officers, and asserted compliance. The court found, however, that the Appellant never filed the Memorandum of Appeal within the seven days granted nor paid for the filed draft, and only filed a Record of Appeal about five months later. Since no appeal existed, no cause could be shown on it; the timeliness jurisprudence (Section 79G, Salat, Kiage JA) forbids aiding parties with scant respect for timelines.
Legal principles established
#- An appeal filed out of time without leave, or documents filed after non-compliance with the conditions of an extension-of-time order, are a nullity in law and the appeal is incompetent.
- Unless a notice of appeal is actually or constructively filed within the appropriate filing period, the appellate court is without jurisdiction to determine the merits of the appeal.
Court orders
#- 1.All documents filed and all steps taken in the appeal after the expiry of the seven (7) days from 25th May 2023 without compliance with the orders in Misc. ELC No. E004 of 2023 are struck out and declared irregular
- 2.The entire Appeal is declared incompetent, having been filed without leave of the Court, and is struck out
- 3.Costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court, Migori
- ELC Case No. 3 of 2022
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (appeals from subordinate courts to the High Court; appellate jurisdiction over Migori ELC Case No. 3 of 2022)
Relief refused
#Sparing of the appeal from dismissal / continuation of the appeal
The Appellant failed to comply with the condition in the leave order (to file a Memorandum of Appeal within seven days), so there is no competent appeal in existence upon which a Notice to Show Cause could issue
Costs
Costs to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that all documents filed and all the steps taken in this appeal after the end of the seven (7) days from 25th May 2023 without the Appellant first having complied with the orders of the said date as issued in the misc. ELC No. E004 of 2023 wherein leave was granted for the applicant to file the draft memorandum of appeal in Seven (7) days were a nullity, irregular and based on a non existent Appeal. They are, thus, struck out and declared irregular respectively, with costs to the Respondent. In short, the entire Appeal incompetent since it was filed without leave of the Court, and is struck out accordingly as stated in the previous sentence.
Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.
This Court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines.
Given the above stated circumstances, it is imperative to consider the efiect of the applicant’s failure to file the Memorandum of Appeal within the seven days granted by the court.
In the Salat Case the Court went on to add that any document filed without the leave of the Court is a nullity in law.
Issues in the judgment
#Inconsistent dates for the grant of leave: the record is repeatedly stated as 24th May 2023, but paragraph 16 states '24th May, 2024' and paragraph 21 refers to 'the end of the seven (7) days from 25th May 2023' rather than 24th May 2023.
Inconsistent dates for the filing of the Record of Appeal: the court records it as 'some time before the 6th November 2024' at paragraph 6, but paragraph 9 and 16 state it was filed 'on 28th November 2023'.
Typographical and grammatical errors throughout, including 'fiect' for 'effect', 'suficient' for 'sufficient', and the internal contradiction that a draft memorandum of appeal was filed with the application yet the appeal is held 'filed without leave of the Court'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo v Okech (Environment and Land Appeal 004 of 2023) [2026] KEELC 102 (KLR)", Case Analysis (2026). Not stated on the face of the judgment (related file: Migori ELC Misc. Application No. E004 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/102/eng@2026-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.