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ELCStruck OutNot stated in the judgment· [2026] KEELC 953 (KLR)

Zadock v Shitandi (Environment and Land Appeal 046 of 2024) [2026] KEELC 953 (KLR)

High Court of Kenya
19 February 2026
ANA. Nyukuri
833 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court struck out an appeal filed over three months late because no application for leave to appeal out of time was ever made.

What this practically means

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Executive summary

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This was an appeal from a subordinate court to the High Court at Kakamega, before A. Nyukuri J. When the appeal came up for admission on 4th November 2025, the court declined to admit it because it had been filed out of time - filed on 20th August 2024 against a decision made on 23rd April 2024 - and granted the appellant an opportunity to produce evidence that the appeal had been filed with leave of court, with mention set for 4th February 2026. On 4th February 2026 counsel sought more time, which was granted, with 14 days to avail evidence of leave. On the return date, counsel for the appellant filed an affidavit sworn by himself, Mr. Daniel Chitwa Chegenye Advocate, dated 11th February 2026, explaining that the late filing was not deliberate and attaching the lower court judgment. The court held that the order it had made required the appellant to provide evidence of leave to file the appeal out of time, not an explanation for the delay. There was no application before the court for leave to appeal out of time or to deem the appeal properly filed, and none had ever been filed. Citing Section 79G of the Civil Procedure Act, which requires appeals from subordinate courts to be filed within thirty days with a proviso for admission out of time on good and sufficient cause, the court found the appeal, filed over three months late and without leave, incurably incompetent. The appeal was struck out with costs to the respondent. Orders were dated, signed and delivered at Kakamega on 19th February 2026.

Key legal issues

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01

Time limit for filing appeals from subordinate courts and the requirement of leave for late filing

Holding

The appeal filed over three months after the decision was out of time and, having been filed without leave and with no application for leave pending, was incurably incompetent and liable to be struck out

Reasoning

Section 79G of the Civil Procedure Act requires appeals from subordinate courts to the High Court to be filed within thirty days of the decree or order appealed against, excluding time certified for preparation of a copy of the decree, with a proviso permitting admission out of time where good and sufficient cause is shown. The appeal against a decision of 23rd April 2024 was filed on 20th August 2024, over three months later. No leave was obtained, and no application for leave was ever filed; counsel instead filed an affidavit explaining delay rather than addressing whether leave existed. The appeal was therefore incompetent.

p. 2

Legal principles established

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  • An appeal from a subordinate court to the High Court must be filed within thirty days, and where there is delay, leave to appeal out of time may be granted only where good and sufficient cause is shown

Court orders

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  1. 1.The appeal is struck out with costs to the respondent
On appeal from
Magistrates' Court (subordinate court)
Jurisdiction invoked
Appeal from a subordinate court under Section 79G of the Civil Procedure Act

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, "Zadock v Shitandi (Environment and Land Appeal 046 of 2024) [2026] KEELC 953 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/953/eng@2026-02-19

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