This ruling is in respect of the Interested Party’s Notice of Preliminary Objection dated 19th September, 2025 which is raised on the following grounds:
1) THAT the Appeal is fatally defective, legally incompetent, an abuse of the Court process and a non-starter having been filed out of time contrary to Section 79G Civil Procedure Act (CAP 21, Laws of Kenya) that mandates appeals from Subordinate Courts must be filed within 30 days from the date of the Judgment. The Judgment appealed against was delivered by the Honourable Magistrate on 6th March 2025 while the Memorandum of Appeal herein was filed without leave on 9th September 2025, after 186 days have lapsed.
2) THAT this Honorable Court lacks jurisdiction to entertain the instant Application and the entire Appeal as the Memorandum of Appeal on which it anchored on is fatally defective, legally incompetent, an abuse of the Court process and non-starter having been filed out of time without the requisite leave contrary to express and mandatory provisions of Section 79G Civil Procedure Act (CAP 21, Laws of Kenya). (sic)
The Interested Party prayed that the application and the entire appeal be dismissed with costs.
INTERESTED PARTY’S SUBMISSIONS
Counsel for the Interested Party filed submissions dated 18th November, 2025. Counsel relied on Sections 79G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act. Counsel submitted that the thirty days allowed for the Appellants to file their appeal against the Judgment delivered on 6th March, 2025 lapsed on 5th April, 2025.
Counsel submitted that the Appellants filed their Memorandum of Appeal on 9th September, 2025 which is 186 days after the date of the Judgment. Counsel submitted that there is no application on record seeking to file the said appeal out of time. Reliance was placed on the following cases: Taib & another vs Wekesa & another (Suing as the legal representative of the Estate of George Ellam Wekesa) [2022] KECA 444 (KLR), and Mungai vs Ngugi & another [2025] KEELC 2966 (KLR) and Salat vs Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR). Counsel asked the court to find merit in the preliminary objection and dismiss the application and the appeal with costs.
APPELLANTS SUBMISSIONS
Counsel for the Appellants filed submissions dated 26th January, 2026 and identified the following issues for determination:
a. Whether the Preliminary Objection raises a pure point of law?
b. Whether the alleged delay divests this Court of jurisdiction?
c. Whether Section 79G Civil Procedure Act renders the Appeal a nullity?
d. Whether the Appeal and stay application should be struck out?
On the first issue, counsel submitted that the preliminary objection is not based on a pure point of law and the facts in dispute require a perusal of the lower court record. Counsel relied on the following cases: Mukisa Biscuit Manufacturing Co vs West End Distributors (1969) EA 696, Oraro vs Mbaja [2005] eKLR and Aviation & Allied Workers Union vs Kenya Airways Ltd [2015] eKLR.
On the second issue, counsel submitted that jurisdiction is lost only where the court lacks subject matter power or there is no right of appeal. Reliance was placed on the case of Samuel Kamau Macharia vs KCB & 2 others [2012] eKLR. On the third issue, counsel submitted that Section 79 G of the Civil Procedure Act provides a provision allowing admission of appeals out of time. Counsel relied on the following cases: Leo Sila Mutiso vs Rose Hellen Wangari Mwangi [1999] eKLR and Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others [2014] eKLR. On the fourth issue, counsel urged the court to grant the application for stay as well as admit the appeal and dismiss the Preliminary Objection by the Respondent.
ANALYSIS AND DETERMINATION
The issue for determination is whether the Interested party’s preliminary objection is merited. A preliminary objection must raise a pure point of law and where there exist contested facts requiring determination, a Preliminary Objection cannot be upheld. The tests to determine whether a matter raises a true Preliminary Objection was summarized in the case of DAVID KAROBIA KIIRU –VS- CHARLES NDERITU GITOI & ANOTHER [2008] eKLR as follows:
“For a Preliminary Objection to succeed the following tests ought to be satisfied: Firstly, it should raise a pure point of law; secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid Preliminary Objection should, if successful, dispose of the suit.” [
The Interested Party contends that this Honorable Court lacks jurisdiction as the Memorandum of Appeal and the application have been filed out of time without the requisite leave contrary to express and mandatory provisions of Section 79G Civil Procedure Act (CAP 21, Laws of Kenya).
In the case of Tome & Another v Attorney General & 2 Others [2021] KECA 150 (KLR) the court stated that:
“It is now a settled principle that striking out a pleading is a draconian act, which may only be resorted to in plain and outright instances. The power of this court to strike out an appeal is discretionary and is exercised based on the peculiar circumstances of each case.”
This court finds that the grounds raised by the interested party do qualify as a true preliminary objection since they revolve on the period and or time for filing of an appeal. The memorandum of appeal clearly shows that the appeal was filed on or after the 9th of September, 2025 more than the 30 days stipulated in section 79G of the Civil Procedure Act Cap 21 Laws of Kenya as the judgment as per the memorandum of appeal was delivered on the 6th March 2025.. The Interested Party’s Notice of Preliminary Objection dated 19th September, 2025 has merit and is hereby allowed thus there entire appeal and application are struck out with costs to the interested party.
1) THAT the Appeal is fatally defective, legally incompetent, an abuse of the Court process and a non-starter having been filed out of time contrary to Section 79G Civil Procedure Act (CAP 21, Laws of Kenya) that mandates appeals from Subordinate Courts must be filed within 30 days from the date of the Judgment. The Judgment appealed against was delivered by the Honourable Magistrate on 6th March 2025 while the Memorandum of Appeal herein was filed without leave on 9th September 2025, after 186 days have lapsed.
2) THAT this Honorable Court lacks jurisdiction to entertain the instant Application and the entire Appeal as the Memorandum of Appeal on which it anchored on is fatally defective, legally incompetent, an abuse of the Court process and non-starter having been filed out of time without the requisite leave contrary to express and mandatory provisions of Section 79G Civil Procedure Act (CAP 21, Laws of Kenya). (sic)
The Interested Party prayed that the application and the entire appeal be dismissed with costs.
INTERESTED PARTY’S SUBMISSIONS
Counsel for the Interested Party filed submissions dated 18th November, 2025. Counsel relied on Sections 79G of the Civil Procedure Act and Section 16A of the Environment and Land Court Act. Counsel submitted that the thirty days allowed for the Appellants to file their appeal against the Judgment delivered on 6th March, 2025 lapsed on 5th April, 2025.
Counsel submitted that the Appellants filed their Memorandum of Appeal on 9th September, 2025 which is 186 days after the date of the Judgment. Counsel submitted that there is no application on record seeking to file the said appeal out of time. Reliance was placed on the following cases: Taib & another vs Wekesa & another (Suing as the legal representative of the Estate of George Ellam Wekesa) [2022] KECA 444 (KLR), and Mungai vs Ngugi & another [2025] KEELC 2966 (KLR) and Salat vs Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR). Counsel asked the court to find merit in the preliminary objection and dismiss the application and the appeal with costs.
APPELLANTS SUBMISSIONS
Counsel for the Appellants filed submissions dated 26th January, 2026 and identified the following issues for determination:
a. Whether the Preliminary Objection raises a pure point of law?
b. Whether the alleged delay divests this Court of jurisdiction?
c. Whether Section 79G Civil Procedure Act renders the Appeal a nullity?
d. Whether the Appeal and stay application should be struck out?
On the first issue, counsel submitted that the preliminary objection is not based on a pure point of law and the facts in dispute require a perusal of the lower court record. Counsel relied on the following cases: Mukisa Biscuit Manufacturing Co vs West End Distributors (1969) EA 696, Oraro vs Mbaja [2005] eKLR and Aviation & Allied Workers Union vs Kenya Airways Ltd [2015] eKLR.
On the second issue, counsel submitted that jurisdiction is lost only where the court lacks subject matter power or there is no right of appeal. Reliance was placed on the case of Samuel Kamau Macharia vs KCB & 2 others [2012] eKLR. On the third issue, counsel submitted that Section 79 G of the Civil Procedure Act provides a provision allowing admission of appeals out of time. Counsel relied on the following cases: Leo Sila Mutiso vs Rose Hellen Wangari Mwangi [1999] eKLR and Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others [2014] eKLR. On the fourth issue, counsel urged the court to grant the application for stay as well as admit the appeal and dismiss the Preliminary Objection by the Respondent.
ANALYSIS AND DETERMINATION
The issue for determination is whether the Interested party’s preliminary objection is merited. A preliminary objection must raise a pure point of law and where there exist contested facts requiring determination, a Preliminary Objection cannot be upheld. The tests to determine whether a matter raises a true Preliminary Objection was summarized in the case of DAVID KAROBIA KIIRU –VS- CHARLES NDERITU GITOI & ANOTHER [2008] eKLR as follows:
“For a Preliminary Objection to succeed the following tests ought to be satisfied: Firstly, it should raise a pure point of law; secondly, it is argued on the assumption that all the facts pleaded by the other side are correct; and finally, it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. A valid Preliminary Objection should, if successful, dispose of the suit.” [
The Interested Party contends that this Honorable Court lacks jurisdiction as the Memorandum of Appeal and the application have been filed out of time without the requisite leave contrary to express and mandatory provisions of Section 79G Civil Procedure Act (CAP 21, Laws of Kenya).
In the case of Tome & Another v Attorney General & 2 Others [2021] KECA 150 (KLR) the court stated that:
“It is now a settled principle that striking out a pleading is a draconian act, which may only be resorted to in plain and outright instances. The power of this court to strike out an appeal is discretionary and is exercised based on the peculiar circumstances of each case.”
This court finds that the grounds raised by the interested party do qualify as a true preliminary objection since they revolve on the period and or time for filing of an appeal. The memorandum of appeal clearly shows that the appeal was filed on or after the 9th of September, 2025 more than the 30 days stipulated in section 79G of the Civil Procedure Act Cap 21 Laws of Kenya as the judgment as per the memorandum of appeal was delivered on the 6th March 2025.. The Interested Party’s Notice of Preliminary Objection dated 19th September, 2025 has merit and is hereby allowed thus there entire appeal and application are struck out with costs to the interested party.