Matoke v Kenya Commercial Bank Ltd & 2 others (Environment and Land Case 127 of 2017) [2026] KEELC 5751 (KLR) (25 September 2026) (Ruling) Neutral citation: [2026] KEELC 5751 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KITALE ENVIRONMENT AND LAND CASE 127 OF 2017 GM GITONGA, J SEPTEMBER 25, 2026 BETWEEN JEREMIAH MATOKE ................................................................................ PLAINTIFF AND KENYA COMMERCIAL BANK LTD ............................................ 1ST DEFENDANT WILLIAM WILHITE ANYENDA .................................................. 2ND DEFENDANT AND THE CHIEF LAND REGISTRAR NAIROBI LAND REGISTRY .. CONTEMNOR RULING 1. The plainti/applicant moved this court by way of a Notice of Motion dated 5/7/5/2026, seeking that the Court be pleased to grant leave to the applicant to appeal an order made by Hon. C.K. Nziki, Judge ELC Kitale, in a ruling delivered on 29/4/2026, in Kitale ELC No. 127 of 2017. 2. The applicant equally prayed for costs of the said application to be in the cause. 3. At paragraphs 5 and 6 of the supporting adavit the applicant avers that at the time of the delivery of the court’s ruling, he did not orally seek the court’s leave to appeal, but he has preferred an appeal on time against said ruling and the consequential orders made on 29/4/2026. 4. The application is based on the grounds on the face of it, mainly that the applicant was dissatised with the said ruling and that the application was made without unreasonable delay. 5. The application is further supported by the applicant’s sworn adavit of even date setting out the facts giving rise to the same. The 2nd respondent led grounds of opposition dated 3/7/2026, whose thrust is that the application has failed to comply with the requisite law, hence, the same should be struck out. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5751/eng@2026-09-25 1
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6. Similarly, the 3rd respondent led grounds of opposition dated 7/7/2027 in which it termed the application as incompetent, misconceived and an abuse of the court process. Counsel for the 3rd respondent further set out grounds of opposition to the eect that the applicant instituted appellate proceedings in Eldoret Civil Appeal No. E025 of 2026, before obtaining leave of the court and has failed to disclose the legal basis upon which the appellate jurisdiction was invoked before leave to appeal was sought. 7. Directions were taken that the application be argued orally, seeing that the applicant did not have any counsel on record. At the said hearing, the applicant reiterated the grounds on the face of the application and further relied on the supporting adavit. 8. On his part, Mr. Kiarie for the 2nd respondent told the court that he opposes the application. Counsel submitted that courts do not make orders in vain. That the applicant already led an appeal at the Court of Appeal, being Civil Appeal No. E254 of 2026, and that the record of appeal has already been served upon them. Counsel conrmed that it is an abuse of the court process for the applicant to move retrospectively seeking leave to appeal when he has already done so. Counsel further argued that once an appeal has been led, the door to seek leave is shut. 9. On her part, Ms. Mulomi for the 3rd respondent associated herself with the submissions of Mr. Kiarie. Counsel further argued that even with the provisions of Article 159(2)(d) of the Constitution, courts have held that the issue of leave to appeal is a jurisdictional issue and not a mere technicality of procedure. Counsel urged the court to dismiss the application. 10. I have carefully considered the application together with the rival grounds of opposition led. I have equally considered the oral arguments by the parties, as well as the applicable law. 11. The application is based on Order 43 Rules 2 and 3 of the Civil Procedure Rules and Section 1A, 1B, 3A, 6, 79G and 95 of the Civil Procedure Act. The applicant has equally invoked Article 159(2)(d) of the Constitution. 12. The applicant’s argument is that he was dissatised with the court’s ruling delivered on 29/4/2026 and that he has preferred an appeal to the Court of Appeal, Eldoret. On the other hand, the respondents’ contention is that the application is an abuse of the court process, the applicant having lodged an appeal at the Court of Appeal, being Eldoret Civil Appeal No. E254 of 2026. 13. The applicant has not disputed the assertion by the respondents that he already instituted appellate proceedings, being Eldoret Civil Appeal No. E254 of 2026. If this be the case, the fundamental question, which is not merely a matter of technicalities to be cured under Article 159(2)(d) of the Constitution is, what would be the purpose of seeking leave to appeal when the applicant has already initiated appeal proceedings at the Court of Appeal? 14. The court’s considered view is that this application serves no purpose. If it is intended to cure the omission to seek leave before the applicant led an appeal at the Court of Appeal, such an omission cannot be cured as the orders issued by this court in that respect cannot be backdated. 15. It is instructive to note that Order 43 Rule 3 of the Civil Procedure Rules contemplates that leave to appeal is, in the rst instance, sought before the court that made the impugned order/ruling. This window already closed by the very act of the applicant in moving the superior court with appellate proceedings. My reckoning is that the applicant can only now seek leave at the Court of Appeal. 16. This application therefore lacks merit, and the same is dismissed with costs. 17. The earlier orders issued on 29/4/2026 closing this le are reiterated. This le is closed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5751/eng@2026-09-25 2
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18. It is so ordered. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 25TH DAY OF SEPTEMBER 2026. In the presence of: Court Assistant - Matui/Nancy Ms. Mulomi for the 3rd respondent Ms. Kesei for the 1st respondent Ms. Mufutu holding brief for Mr. Kiarie for the 2nd respondent Applicant in person. HON. G.M. GITONGA JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5751/eng@2026-09-25 3
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