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ELCAllowedNot stated in the judgment (appeal from Milimani CMELC E107 of 2022)

Kiboi v Kibetu & 2 others (Land Case Appeal E194 of 2025) [2026] KEELC 2177 (KLR)

Environment and Land Court
21 April 2026
1,270 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land appeal filed 45 days late because the lawyer lacked a Certificate of Delay explaining the delay.

What this practically means

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Executive summary

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The 1st Respondent/Applicant moved the Environment and Land Court by Notice of Motion dated 4th December 2025 under Sections 79G, 1A, 1B and 3A of the Civil Procedure Act, Order 51 of the Civil Procedure Rules 2010 and Sections 16A, 13 and 19 of the Environment and Land Court Act, seeking the striking out of the Appellant's Record of Appeal dated 22nd September 2025. The underlying dispute concerned L.R. No. Nairobi/Block 105/6080, in which the Magistrate's Court at Milimani had on 17th July 2025 declared that no valid sale agreement existed for want of compliance with Section 3(3) of the Law of Contract Act, rectified the register, and ordered the Appellant to refund the purchase price and costs. The Applicant argued the appeal was filed out of time with no extension application and no Certificate of Delay. The Appellant attributed the delay to the lower court registry and invoked Article 159(2)(d) of the Constitution. The court framed three issues: timeliness under Section 79G, the effect of the missing Certificate of Delay, and whether sufficient cause justified enlargement of time. It found the 30-day period expired around 16th August 2025 while the Record was filed on 1st October 2025, roughly 45 days late; a Notice of Appeal is not the appeal itself. Excludable time requires certification by the lower court, and in its absence the delay is unaccounted for. The Appellant's explanation was general and did not discharge the burden under the Salat principles. Arguable grounds could not cure a jurisdictional defect. The court struck out the Record of Appeal, awarded the Applicant costs assessed at Ksh. 30,000/- all inclusive, and ordered the file closed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal was filed out of time contrary to Section 79G of the Civil Procedure Act
  2. 2.Whether the absence of a Certificate of Delay is fatal
  3. 3.Whether the Appellant has demonstrated sufficient cause warranting the exercise of discretion to enlarge time

Key legal issues

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01

Whether the appeal was filed out of time

Holding

The 30-day period expired on or about 16th August 2025 and the Record of Appeal was filed on 1st October 2025, approximately 45 days late; the appeal was filed out of time.

Reasoning

Judgment was delivered on 17th July 2025 and the statutory 30-day window under Section 79G expired around 16th August 2025. The Record of Appeal was only filed on 1st October 2025. The earlier Notice of Appeal did not amount to filing the appeal, so the appeal was incompetent for want of timeliness and leave.

p. 2
02

Whether the absence of a Certificate of Delay is fatal

Holding

Yes; without a certificate the entire period is unaccounted for and the absence is fatal.

Reasoning

The proviso to Section 79G excludes time taken to prepare and deliver proceedings only where the lower court certifies that time as requisite. The Appellant requested proceedings on 18th July 2025 and blamed the registry, but exhibited no Certificate of Delay. Informal explanations cannot substitute for certification, so the whole period between judgment and filing remained unexcluded.

p. 3
03

Whether sufficient cause was shown to enlarge time

Holding

No; the Appellant did not discharge the Salat burden, and arguable appeal points do not cure a jurisdictional defect.

Reasoning

Applying the Salat principles, the applicant bears the burden of explaining delay satisfactorily. The Appellant's explanation was general, alleging registry delay and diligent follow-up without particulars of dates or steps taken. Arguability of the lower court's finding on the sale agreement could not cure the threshold jurisdictional defect; a court without jurisdiction must down its tools.

p. 3

Legal principles established

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  • Time taken for preparation and delivery of proceedings is excludable under the proviso to Section 79G only upon certification by the lower court; in the absence of a Certificate of Delay the period is not excluded and the appeal filed beyond 30 days is out of time.
  • Filing a Notice of Appeal does not constitute the filing of the appeal itself.
  • Article 159(2)(d) does not permit disregard of mandatory statutory timelines that go to jurisdiction.

Court orders

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  1. 1.The Record of Appeal dated 22nd September 2025 and filed on 1st October 2025 is hereby struck out
  2. 2.The Appellant shall pay the costs of this application to the 1st Respondent/Applicant, assessed at an all inclusive sum of Ksh. 30,000/=
  3. 3.This file shall be marked as closed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrate's Court at Milimani Commercial Courts
MCELC/E107/2022
Jurisdiction invoked
Sections 79G, 1A, 1B and 3A of the Civil Procedure Act (Cap 21); Order 51 of the Civil Procedure Rules 2010; Sections 16A, 13 and 19 of the Environment and Land Court Act

Quotable passages

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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 cumulative effect of filing out of time, without leave, and without a Certificate of Delay renders the appeal incompetent ab initio. A court lacking jurisdiction must down its tools. Striking out is the only appropriate remedy.
incompetence of appeal filed out of time without certificate
While Article 159(2)(d) of the Constitution enjoins courts to administer substantive justice without undue regard to technicalities, it does not permit disregard of mandatory statutory timelines that go to jurisdiction.
p. 3limits of Article 159(2)(d) on mandatory timelines
The Record of Appeal dated 22nd September 2025 and filed on 1st October 2025 is hereby struck out.
p. 3final orders

Issues in the judgment

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minor

The court states it has outlined 'two salient issues' but actually enumerates three issues.

minor

The judgment does not state the case number of the present appeal before the Environment and Land 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, "Kiboi v Kibetu & 2 others (Land Case Appeal E194 of 2025) [2026] KEELC 2177 (KLR)", Case Analysis (2026). Not stated in the judgment (appeal from Milimani CMELC E107 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2177/eng@2026-04-21

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