Tare v Kiguru (Environment and Land Appeal E174 of 2024) [2026] KEELC 1391 (KLR)
The bottom line
#An appeal was struck out because the appellant never filed the memorandum of appeal within the time allowed, and missing that deadline killed the appeal entirely.
What this practically means
#Executive summary
#Key legal issues
#Whether the objection that no memorandum of appeal was filed is a proper preliminary objection
Yes, it is a proper preliminary objection because it is easily verifiable from the pleadings and raises a pure point of law
Applying Mukisa Biscuit and Oraro v Mbaja, the court held that although the objection touches on the filing of a document, that fact is easily verifiable from the electronic and manual court files accessible to both parties, so no disputed facts need to be ascertained. The objection thus raises a pure point of law and may dispose of the suit.
Whether the appeal is properly before the court where the memorandum of appeal was not filed within the 14 days granted
No; the leave lapsed, no valid appeal exists, and the appeal is struck out for incompetence
The court's order of 25th March 2025 required the memorandum of appeal to be filed within 14 days. The memorandum allegedly filed on 7th November 2024 preceded the leave and could not be regularized without a specific order. The application to substitute security was a separate issue that did not excuse non-compliance. Without the memorandum, the court's jurisdiction under Order 42 Rule 1 was never invoked.
Legal principles established
#- The memorandum of appeal is the critical document that confers appellate jurisdiction on the court; without it the court acts in a vacuum
- A document filed out of time cannot be regularized unless a specific order is sought and allowed
- Article 159 of the Constitution cannot cure a lapse of mandatory statutory requirements that go to jurisdiction
Court orders
#- 1.The appeal is struck out for incompetence
- 2.The Respondent shall have the costs of the appeal
- On appeal from
- Chief Magistrates Court, Milimani
- Milimani MCELC No E 4258/22
- Jurisdiction invoked
- Order 42 Rule 1 of the Civil Procedure Rules (compliance as basis of appellate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tare v Kiguru (Environment and Land Appeal E174 of 2024) [2026] KEELC 1391 (KLR)", Case Analysis (2026). Unstated (appeal from Milimani MCELC No E4258/22). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1391/eng@2026-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.