Tare v Kiguru (Environment and Land Appeal E174 of 2024) [2026] KEELC 1391 (KLR)

memorandum of appeal. This being the second time the matter was being raised, the court directed that the matter be raised formally. It is this Preliminary Objection that is before the court. 4. The Respondent submits that the court has no jurisdiction to hear this matter as no memorandum of appeal has been filed. Counsel submits that on the 4th June 2025 counsel for the Appellant insisted that he had filed a memorandum of appeal. On the 11th December 2025 counsel again insisted he had filed a memorandum of appeal which counsel for the Respondent insists he has not. 5. Counsel for the Appellant filed submissions in which he submitted that the Preliminary Objection delves into factual matters hence is not a proper preliminary objection. He insists that the Memorandum of Appeal was one of the documents filed on 7th November 2024. He further argued that the court having granted leave to substitute the security could still give directions on the filing of the Record of Appeal. 6. The twin issues for determination are whether this is a proper preliminary objection and secondly whether it has merit. It is trite law that for a preliminary objection to be valid; firstly, it must raise a pure point of law. Secondly, the objection should be argued on the assumption that all the facts pleaded by the party against whom it is raised are correct. Lastly, an objection cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA stated as follows: “So far as I’m aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 7. The Court also takes into account the fact that a preliminary objection must stem from the pleadings and raise a pure point of law, and should not deal with disputed facts nor should it derive its foundation from factual information. See the case of Oraro v Mbaja [2005] 1KLR 141, where it was held that: “Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence”. 8. In the instant case the Preliminary objection arises from the allegation that there is no memorandum of appeal. This is a matter that is easily verifiable from the pleadings in the electronic and manual file which all the parties herein can access. I therefore find that the issue has been properly raised for the courts determination. 9. It is not in dispute that the court granted extension of time to file an appeal on the 25th March 2025. The courts order was clear that the memorandum of appeal was to be filed within 14 days. The counsel argues that a memorandum of appeal had been filed earlier on 7th November 2024. It has been held in countless decisions that a document filed out of time cannot be regularized unless a specific order is sought and allowed. In this instance the order was that the memorandum be filed within 14 days of 25th March 2024 when leave was granted. This was not done. 10. The Appellant has stated that they could not file the memorandum of appeal as they had filed an application to substitute the security. The Jurisdiction of this court is invoked by compliance with Order 42 Rule 1. Without the memorandum the court is acting in a vacuum. The issue of stay and security was a totally difierent issue that could not afiect compliance with the courts decision on filing of the memorandum of appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1391/eng@2026-01-27 2

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11. I hasten to clarify that courts routinely grant time to file the record of appeal which in many instances delay because of systemic challenges in the registry. However the memorandum of appeal is the critical document that clothes this court with jurisdiction as an appellate court. 12. This is a lapse which cannot be cured by Article 159 of the Constitution which was never meant to overthrow mandatory statutory requirements that go to jurisdiction. Ultimately I find that the leave to file out of time was not utilized and consequently lapsed. The appeal is hereby struck out for incompetence. The Respondent shall have the costs of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 22ND JANUARY 2026. JUDY OMANGE JUDGE. In the Presence of: Mr. Wanga for the Applicant. Mr. Gachuki for the Respondent. Peter – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1391/eng@2026-01-27 3

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