Jefwa & another v Menzaа & 4 others (Environment and Land Appeal E012 of 2024) [2026] KEELC 2773 (KLR)

2. The application is supported by the affidavit of counsel for the respondents/applicants, Mr. Jackson Muchiri, which was deposed on October 6, 2025. 3. The application is opposed. Counsel deposes a replying affidavit for the applicants/respondents, Mr. Zedekiah Adika, on the 4th day of November 2025. 4. The application was canvassed through written submissions. I acknowledge receipt of the submissions from counsel for the parties with gratitude, as they went a long way to aid the Court in arriving at its verdict. 5. Based on the materials before me, the issues for this Court's decision are whether we have a proper appeal, whether the current appeal should be struck out, and who should bear the costs. 6. The respondents (who can be described as intended respondents in the intended appeal) contend that the applicants (who, from the record, can be described as intended appellants) filed their so-called “appeal” more than two years and one month after judgment. That, in itself, was an egregious case. see Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, where the Supreme Court ELCA NO. E012 OF 2024 Page 2 of 7

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held that rules of procedure are not mere technicalities but form the backbone of orderly litigation. See also Gerald M’limbine v Joseph Kangangi [2009] eKLR, where the Court emphasized that an appeal filed outside the statutory timelines without leave is a non-starter. 7. The respondents further contend that the document was curiously styled as an “appeal,” yet, upon scrutiny, it was nothing of the sort. The applicants themselves referred to themselves as “intended appellants,” and the contents of the pleading made it clear they were merely seeking leave to appeal out of time. 8. Recognizing this, the Court, in its abundant mercy, exercised discretion on July 29, 2024, to grant the applicants a final indulgence: a 14-day window to file a proper appeal. That period expired on August 12, 2024. The applicants let the indulgence lapse, doing absolutely nothing by the August 12, 2024, deadline. According to the respondents, this inaction is fatal. Once the Court’s order expired without compliance, the applicants lost any opportunity to appeal. They cannot now resuscitate dead proceedings. ELCA NO. E012 OF 2024 Page 3 of 7

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9. The Respondents thus argue that, because there is no competent appeal, there is nothing left but to strike out the alleged appeal. 10. On the other hand, the applicant argues that the Court directed that the Appeal be filed within 14 days of July 29, 2025. By that time, the Notice and Memorandum of Appeal had already been filed and were on record. The two were filed together with the Application, as demonstrated herein. The Record of Appeal was in the Court registry from Hola to Kilifi. It was explained at the registry that the file had to be moved to Kilifi and Hola, and that this process would take time. The Advocate on record followed up in person to ensure that the proceedings in the matter were sent to them. The Kilifi Registry issued this document pursuant to the Court's stipulated direction. The applicants took the earliest opportunity to file the Record of Appeal upon receipt of the documents. To date, the same documents as filed on April 25, 2025, remain. There is neither a change in the grounds of appeal nor in the Notice of Appeal. 11. Applicants argue that the Court of Appeal held that once leave is granted, in Murai v Wainaina(No.4) [1982] KLR ELCA NO. E012 OF 2024 Page 4 of 7

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38, a pleading lodged together with an application for leave can be deemed duly filed. Courts and tribunals routinely validate draft pleadings annexed to applications for leave to avoid delay and multiplicity of applications. 12. From the parties' submissions, it is not in dispute that the current appeal was filed without the Court's leave and that the time for the appeal had lapsed. Accordingly, the applicants brought an application to enlarge the time to appeal, vide notice of motion dated 25th March 2025. Therefore, the Memorandum of Appeal and the Notice of Appeal dated 25th March 2024 were legally untenable because they were filed out of time. 13. The Court directed that the motion be served. On July 29, 2024, when the matter was set for an inter partes hearing, the Court allowed an enlargement of time because the application had not been opposed. The Court directed: “Application allowed as prayed, that there is no response to it. The main appeal is to be filed within 14 days.” 14. The rationale for those orders was that, since the appeal had been filed out of time, the Court gave the applicants/intended appellants 14 days to file a proper ELCA NO. E012 OF 2024 Page 5 of 7

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appeal. This means the current file ought to have been closed. In fact, it ought to have been a Miscellaneous application seeking leave to appeal out of time. Therefore, the file was legally closed, and the intended appellants ought to have filed a proper appeal and served the same on the respondents within the 14-day window provided. 15. Instead of doing that, the intended appellants/applicants waited until September 21, 2025, when they purported to file a record of appeal, maintaining the very same Memorandum of appeal and records that the Court had decreed to be regularized by filing a proper appeal, thereby reversing and returning to the position the Court had directed to be regularized. In addition, the intended appellants overshot the period given within which to regularize the appeal. 16. Currently, there is no valid appeal in place. I concur with the counsel for the respondent/applicants in the current motion Application dated October 6, 2025, that no proper appeal exists and that the existing record does not constitute a valid appeal. Consequently, the purported appeal is struck out, with costs awarded to the respondent/applicant. ELCA NO. E012 OF 2024 Page 6 of 7

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Dated, signed, and delivered virtually in Nyeri on this 29th day of April, 2026. E. K. MAKORI JUDGE In the Presence of: Ms. Maveke for the Intended Appellants/Respondents Mr. Muchiri for the Intended Respondents/Applicants Dennis: Court Assistant ELCA NO. E012 OF 2024 Page 7 of 7

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