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ELCDismissedEnvironment and Land Case 127 of 2017· [2026] KEELC 5751 (KLR)

Matoke v Kenya Commercial Bank Ltd & 2 others

Environment and Land Court
25 September 2026
GGG.M. Gitonga
1,011 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to grant a man permission to appeal because he had already filed his appeal without asking for it first.

What this practically means

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Executive summary

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The plaintiff, Jeremiah Matoke, moved the Environment and Land Court at Kitale by Notice of Motion seeking leave to appeal a ruling delivered on 29 April 2026 by Hon. C.K. Nziki in Kitale ELC No. 127 of 2017. He did not orally seek leave when the ruling was delivered and had already filed an appeal at the Court of Appeal in Eldoret. The 2nd and 3rd respondents filed grounds of opposition, contending that the application was incompetent, an abuse of process, and futile because the appeal had already been lodged and the record served. Counsel argued that once an appeal is filed the door to seeking leave is shut, and that leave to appeal is a jurisdictional issue not curable under Article 159(2)(d) of the Constitution. The applicant, acting in person, relied on the grounds on the face of the motion and his supporting affidavit, invoking Order 43 Rules 2 and 3 of the Civil Procedure Rules, sections 1A, 1B, 3A, 6, 79G and 95 of the Civil Procedure Act, and Article 159(2)(d). Gitonga J held that the application served no purpose: leave cannot be backdated to cure the omission to seek it before filing the appeal, and under Order 43 Rule 3 leave is in the first instance sought in the court that made the impugned order - a window the applicant closed by moving the Court of Appeal. Any further application for leave lies at the Court of Appeal. The application was dismissed with costs, the orders of 29 April 2026 closing the file were reiterated, and the file was closed.

Key legal issues

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01

Purpose of retrospective leave to appeal after filing an appeal

Holding

The application is an abuse serving no purpose; the omission to seek leave before filing the appeal cannot be cured retrospectively

Reasoning

The applicant did not dispute that he had already instituted Eldoret Civil Appeal No. E254 of 2026. The court held that seeking leave after lodging an appeal is futile because leave orders cannot be backdated, and the proper forum for leave is now the Court of Appeal. Article 159(2)(d) cannot cure this jurisdictional defect.

p. 2
02

Forum for seeking leave to appeal

Holding

Leave must first be sought in the court that made the impugned order; that window closed once the applicant moved the Court of Appeal

Reasoning

Order 43 Rule 3 contemplates that leave is sought in the first instance before the court that made the order. By filing appellate proceedings, the applicant closed that window and can now only seek leave at the Court of Appeal itself.

p. 2

Legal principles established

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  • Leave to appeal must in the first instance be sought before the court that made the impugned order; once an appeal is filed in the superior court, that window closes and leave can only be sought at the Court of Appeal
  • Orders granting leave to appeal cannot be backdated to cure an omission to seek leave before filing an appeal

Court orders

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  1. 1.The application for leave to appeal is dismissed with costs
  2. 2.The earlier orders issued on 29/4/2026 closing the file are reiterated and the file is closed
Jurisdiction invoked
Order 43 Rules 2 and 3 of the Civil Procedure Rules; Sections 1A, 1B, 3A, 6, 79G and 95 of the Civil Procedure Act; Article 159(2)(d) of the Constitution

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, "Matoke v Kenya Commercial Bank Ltd & 2 others", Case Analysis (2026). Environment and Land Case 127 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5751/eng@2026-09-25

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