Murimi v Macharia & 2 others (Environment and Land Appeal 4 of 2023) [2025] KEELC 18465 (KLR) (27 November 2025) (Ruling) Neutral citation: [2025] KEELC 18465 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ENVIRONMENT AND LAND APPEAL 4 OF 2023 J OMANGE, J NOVEMBER 27, 2025 BETWEEN SIMON WAITHAKA MURIMI ............................................................. APPELLANT AND CHARLES MUGO MACHARIA .................................................. 1ST RESPONDENT PARPIAS KARINGA CHAIRMAN MAKONGENI SETTLEMENT SCHEME ......................................................................................... 2ND RESPONDENT BERNARD MAINA KARINGA .................................................. 3RD RESPONDENT RULING 1. The court had directed that the appeal be canvassed by way of written submissions. Both parties led written submissions which the court has carefully considered. The appeal herein was scheduled for Judgement. A preliminary issue raised by the 1st Respondent goes to the jurisdiction of the court to hear the appeal. The Respondent submits that the appeal is incompetent as the Memorandum of Appeal was led outside time. 2. The facts are not in dispute. The Judgement appealed against was delivered on 17th February, 2023 in the Milimani Chief Magistrates Court. A Notice of Appeal was led on 20th February 2023 and later a Memorandum of Appeal was lodged dated 2nd June 2023. 3. Section 79 G of the Civil Procedure Act provides; “ Every appeal from a subordinate court to the High Court shall be led within a period of thirty days from the date of the decree or order appealed against provided that an appeal maybe admitted out of time if the appellant satises the court that he had a good and sucient cause for not ling the appeal in time. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18465/eng@2025-11-27 1
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4. It is therefore clear that a Memorandum of Appeal is the instrument that institutes an appeal in the court and must be lodged within thirty days unless leave is granted to extend time. A Notice of Appeal is only led in respect of appeals to the Court of Appeal hence has no eect in the High Court. 5. The Judgement herein was delivered on 17th February 2023. The Appellants Memorandum of Appeal was led on 2nd June 2023 nearly three and a half months later. This was well beyond the statutory period of thirty days. 6. It is not disputed that the applicant never sought leave under the proviso to section 79 to le the appeal out of time. Neither has the appellant given any extenuating factors that would justify the delay in ling the memorandum of appeal. 7. The question is, given that the appeal was admitted, directions issued and a Judgement date given, can the fact that the matter has progressed cure the initial defect? As stated in numerous decisions of the superior courts, jurisdiction and competence are foundational and where absent, a court must down its tools. 8. In the case of Nicholas Kiptoo Arap Korir Salat Versus IEBC & 7 others ( 2014) eKLR the Supreme Court emphasized that timelines are a jurisdictional matter. An appeal led out of time without leave is a nullity regardless of subsequent steps taken. 9. Similarly, in Mae Properties Ltd Versus Joseph Kibe & Another (2017) eKLR the Court of Appeal observed that no amount of legal ingenuity can breathe life into an appeal lodged outside the prescribed time without leave. 10. Consequently, I nd that the appeal herein is incompetent and is struck out with no orders as to costs JUDGEMENT SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 27TH DAY OF NOVEMBER 2025 JUDY OMANGE JUDGE In the presence of Court Assistant Catherine Mr. Mwaure for Mr. Kabaiku for Applicant Ms Magotsi for 1st and 3rd Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18465/eng@2025-11-27 2
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