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ELCStruck OutKisii CMCC 36 of 2018 (Appeal therefrom)· [2026] KEELC 4567 (KLR)

Borura & another v Mosota (Environment and Land Appeal E038 of 2024) [2026] KEELC 4567 (KLR)

High Court of Kenya
16 July 2026
AOA. Omollo
1,900 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court struck out a land appeal filed 48 days after judgment because Kenyan law gives you only 30 days to appeal, unless you first get permission.

What this practically means

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Executive summary

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This was an appeal to the High Court at Kisii against the judgment of B.O. Omwansa SPM delivered on 30 July 2024 in Kisii CMCC 36 of 2018, a land dispute over a portion of Central Kitutu/Mwamosioma/270 later subdivided as Central Kitutu/Mwamosioma/2318. The Respondent claimed his late father purchased a 50 by 100 feet portion in 1993 for Kshs 30,000, took possession, and remained in occupation, while the Appellants contested his entitlement, raised statutory bar arguments under the Limitation of Actions Act and Land Control Act, and filed a counterclaim. Before reaching the merits, the court addressed the Respondent's submission that the appeal was filed out of time. The court confirmed from the CTS platform that the memorandum of appeal was lodged on 19 September 2024, approximately 48 days after judgment, exceeding the 30-day period in section 79G of the Civil Procedure Act. The record contained no application for extension of time; the notice of appeal dated 31 July 2024 did not assist, as such notices apply only to appeals to the Court of Appeal. No exclusions under Order 50 rules 2 and 4 of the Civil Procedure Rules saved the delay. The court held the appeal incompetent, struck it out, and awarded costs to the Respondent. The merits of the land dispute, including the adverse possession and indefeasibility of title arguments, were never determined.

Key legal issues

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01

Validity of the appeal filed out of time

Holding

The appeal filed 48 days after judgment, without any application for extension of time or leave, is incompetent and must be struck out

Reasoning

Section 79G requires appeals to the High Court to be filed within 30 days of the decree or order, subject to admission out of time on good and sufficient cause. The memorandum of appeal was lodged on 19 September 2024, about 48 days after the 30 July 2024 judgment. The record contained no application for extension of time; the notice of appeal dated 31 July 2024 was irrelevant as such notices apply only to appeals to the Court of Appeal. No exclusions under Order 50 rules 2 and 4 applied to save the filing.

p. 4

Legal principles established

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  • An appeal from a subordinate court to the High Court must be filed within thirty days of the decree or order appealed against, and where filed out of time without leave, it is incompetent and liable to be struck out
  • A notice of appeal is not a substitute for leave to file an appeal out of time, and filing a notice of appeal applies only to appeals to the Court of Appeal

Court orders

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  1. 1.The appeal is struck out for incompetence, having been filed outside the 30-day period set by law and without leave of the court
  2. 2.Costs of the appeal are awarded to the Respondent

Authorities

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Legislation

  • Land Registration ActSections 25-27
  • Limitation of Actions Act
  • Land Control Act
  • Civil Procedure ActSection 79G
  • Civil Procedure RulesOrder 50 rules 2 and 4
On appeal from
Chief Magistrate's Court, Kisii
Kisii CMCC 36 of 2018
Jurisdiction invoked
Section 79G of the Civil Procedure Act (appeals from subordinate courts to the High 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, "Borura & another v Mosota (Environment and Land Appeal E038 of 2024) [2026] KEELC 4567 (KLR)", Case Analysis (2026). Kisii CMCC 36 of 2018 (Appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4567/eng@2026-07-16

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