Cabinet Secretary, Ministry of Lands Housing and Urban Development & 2 others v Osman (On his own Behalf and on behalf of 1222 Evictees of Medina Location, Municipal Council of Garissa) & another; Global Initiative for Economic Rights & 6 others (Amicus Curiae)
The bottom line
#Kenya's Court of Appeal refused to strike out a government appeal over a defective record, confirming missing documents can be fixed with a supplementary record.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Appeal and the Appeal should be deemed withdrawn or struck out as sought in the applicant's Notice of Motion dated 28th July, 2017
- 2.Whether the appeal was filed out of time and without leave
- 3.Whether omission of primary documents (the decree and the applicant's written submissions) from the record of appeal is fatal
- 4.Whether non-joinder/non-service of the Amicus Curiae warrants striking out the appeal
- 5.Whether the 3rd respondent's post-judgment review proceedings in the lower court amounted to abandonment of the appeal
Key legal issues
#Timeliness of filing the appeal
The appeal was filed within the 60 days allowed by the Court's Rules, the proceedings having been applied for timeously and only availed after 1621 days, as evidenced by the certificate of delay
The Notice of Appeal was filed on 25th November 2011, within 9 days of the judgment, and a letter bespeaking proceedings was written and served. The certificate of delay showed proceedings were only availed on 11th May 2017. The record of appeal filed on 29th June 2017 was therefore within the 60 days contemplated by the Rules.
Omission of primary documents from the record of appeal
Omission of documents such as the decree and written submissions is not a sufficient ground to strike out the appeal; the remedy is a supplementary record under Rule 92(1)
Rule 92(1) of the Court of Appeal Rules places an obligation on respondents who consider the record defective or insufficient to lodge a supplementary record containing further documents required for the proper determination of the appeal. The omission is therefore curable and not fatal.
Non-joinder and non-service of the Amicus Curiae
Non-joinder of the Amicus Curiae in the appeal does not warrant striking out the appeal, especially as the Amicus has since filed a Notice of Appointment of Advocates
The record of appeal does not name the Amicus Curiae, and non-service was plausibly explained by the death of the Amicus' advocate, Mr. Odindo Opiata, which fact was not denied. The court found the non-joinder insufficient to strike out the appeal, noting the Amicus had appointed new advocates.
Legal principles established
#- A respondent who considers a record of appeal defective or insufficient may lodge a supplementary record of appeal rather than seek striking out; omission of documents is not a sufficient ground to strike out an appeal
- Non-joinder of the Amicus Curiae in an appeal does not constitute sufficient reason to strike out the appeal, particularly where the Amicus has since filed a Notice of Appointment of Advocates
Court orders
#- 1.The Notice of Motion dated 28th July, 2017 is dismissed
- 2.No costs awarded, given the non-appearance of the respondent at the plenary hearing
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Embu
- Constitutional Petition No. 2 of 2011
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under its Rules (Notice of Appeal filed under the Court of Appeal Rules); the ruling concerns an interlocutory motion within Civil Appeal 89 of 2017
Relief refused
#Deeming of the Notice of Appeal and the Appeal as withdrawn, or in the alternative striking out of the Notice of Appeal and the Appeal
The appeal was filed within time; omission of documents is curable under Rule 92(1); non-joinder of the Amicus Curiae is not sufficient reason to strike out; the Amicus has since appointed new advocates
Costs
No costs awarded, given the non-appearance of the respondent during the plenary hearing of the motion
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The appeal was filed on 29th June, 2017 which was well within the 60 days contemplated by this Court’s Rules.
The omission of documents in our view, is not a sufficient ground to have the appeal struck out in view of Rule 92(1) of this Court’s Rules.
the non-joinder notwithstanding, we do not think that this would constitute sufficient reason to have the Appeal struck out.
We believe we have said enough to show that the motion dated 28th July, 2017 is for dismissal and is hereby dismissed. We award no costs, given the non- appearance of the respondent during the plenary hearing of the motion.
Issues in the judgment
#Paragraph numbering is irregular - the number 5 and 6 are used twice in the ruling
Delivery venue stated as NAIROBI in the orders despite the court being styled at Nyeri
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cabinet Secretary, Ministry of Lands Housing and Urban Development & 2 others v Osman (On his own Behalf and on behalf of 1222 Evictees of Medina Location, Municipal Council of Garissa) & another; Global Initiative for Economic Rights & 6 others (Amicus Curiae)", Case Analysis (2022). Civil Appeal 89 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/876/eng@2022-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.