Muiruri & 2 others v Blaetermann (Suing through Shabir Hatim Ali) & another (Civil Appeal E023 of 2022) [2024] KECA 1160 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed the appellants' bid to have their land appeal certified as a matter of public importance and warned that defective appeal records can kill an appeal.
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 Registrar of the Environment and Land Court had authority to certify the appeal as raising a matter of general public importance.
- 2.What documents constitute a record of appeal in an appeal from a decision of the Environment and Land Court.
- 3.Whether the record of appeal as filed was competent and compliant with Rule 16(2) of the Court of Appeal Rules, 2022 and this Court's Practice Directions on electronic filing.
- 4.Whether the registrar's certification, being an administrative act, was a precedent binding on the Court in its judicial function.
- 5.Whether the Memorandum of Record of Appeal is a pleading and whether its absence renders the appeal fatally defective.
- 6.Whether the orders for consolidation made by the trial court were regular, and whether the effect of consolidation and the common hearing required all appeals to be filed as one appeal.
- 7.Whether the absence of a certified decree/order in the record is fatal to the appeal.
Key legal issues
#Scope of Rule 16(2) of the Court of Appeal Rules, 2022 on the contents of a Record of Appeal
The record of appeal is a single continuous document; where it is impracticable to file one volume, it may be filed in multiple volumes with consecutive pagination. The record must contain the memorandum of appeal, pleadings, certified decree, notice of appeal, and the certified order for typesetting the proceedings; non-compliance is fatal to the appeal.
The Court reviewed Rule 16(2) of the 2022 Rules and the Practice Directions on Electronic Filing. Under sub-rule (2), the record must contain the pleadings, notes, evidence, order and decree, judgment and all other relevant documents. The word 'shall' makes the provision mandatory. The applicants, without leave, filed the record in two volumes with separate, non-consecutive pagination, in breach of the rule. The Court held that such breach is not a mere irregularity but a fundamental defect going to the competence of the appeal.
Nature of certification by the Registrar that an appeal raises a matter of general public importance
Certification by the Registrar is a preliminary, ministerial and administrative act which facilitates the listing of the appeal but does not constitute a judicial determination of general public importance binding on the Court.
The Court held that the Registrar, acting under the certificate dated 13th April 2021, performed an administrative function, not a judicial one. When the appeal comes up for substantive hearing, the Court, exercising its judicial function, is free to disagree with the Registrar's certification. Accordingly, the applicants' submission that the certification created a binding precedent fell away.
Status of a Memorandum of Record of Appeal and whether its absence is fatal
A memorandum of appeal is not a pleading; the absence of a Memorandum of Record of Appeal does not vitiate the record of appeal, which is a single document filed once by a party.
The Court reasoned that an appeal is filed by a Memorandum of Appeal, not a Memorandum of Record of Appeal; the latter is an appendage to the appeal. Since the record of appeal is a single document filed once by a party, it cannot be a pleading. The absence of a memorandum of record of appeal does not, therefore, render the record defective.
Effect of consolidation of suits and the duty to prosecute one's own appeal
Where suits are consolidated and prosecuted together, each party must prosecute its own appeal by filing its own record of appeal; a party cannot rely on another party's record of appeal.
The Court noted that consolidation of the three suits resulted in one consolidated appeal, but the 1st appellant did not file any record of appeal. Since the 1st appellant was jointly and severally liable with the 2nd to 6th appellants and the claim was common, she was required to file her own record of appeal. Consolidation does not make a party a mere witness.
Whether the absence of a certified decree/order in the record is fatal
Under Rule 8(9), the certified copy of the decree/order must be certified by the Deputy Registrar of the superior court, not by the trial judge, and the absence of a certified decree does not render the record fatally defective.
The Court examined Rule 8(9), which requires a certified copy of the decree or order to be included in the record. The applicants drew and filed the decree in HCCC No. 42 of 2014 after the judgment, and the Deputy Registrar's rejection was based on the absence of a Judicial Review Order certified by the trial judge. The Court held that the rule requires certification by the Deputy Registrar, not the trial judge, and that the absence of a certified decree is a curable irregularity.
Whether the appeal record was defective on the ground that the Consolidated Appeal was prosecuted on a record filed by the 2nd to 6th appellants only
There was only one consolidated appeal, Civil Appeal No. 127 of 2015, filed by the 2nd to 6th appellants; the 1st appellant, having not filed her own record of appeal, could not rely on the record filed by her co-appellants.
The Court found that the consolidation orders made by Majanja, J. on 24th October 2017, and the subsequent common hearing of all three appeals by Ochieng, J., meant that the appeals were disposed of by one consolidated judgment. Since the 1st appellant was a party to that consolidated appeal, she was required to prosecute her own appeal; her failure to do so could not be cured by relying on the record filed by her co-appellants.
Legal principles established
#- Where a subordinate court has no jurisdiction to determine a question of grand custody in the first instance, the Environment and Land Court lacks jurisdiction to grant orders of the nature sought under Section 16 of the Land Registration Act.
- A Record of Appeal, in a first appeal, is a single document which must contain specific documents which include the pleadings, the judgment or order appealed against and a certified copy of the decree, among others.
- Rule 16(2) of the Court of Appeal Rules, 2022 is couched in mandatory terms and requires the record to be filed as one continuous document; a record filed in multiple volumes in breach thereof is fatally defective.
- Where two or more suits are consolidated and the defendants are jointly and severally liable and the claim is common, each party must prosecute their own appeal and cannot rely on another party's record; consolidation does not convert a party into a mere witness.
- Certification of an appeal by the Registrar as raising a matter of general public importance is a preliminary, administrative act which does not bind the Court when exercising its judicial function; the Court is free to disagree with the Registrar's certification.
- A memorandum of appeal is not a pleading and is therefore not a document that must be filed by a party; the absence of a Memorandum of Record of Appeal does not vitiate a Record of Appeal.
- Under Rule 8(9) of the Court of Appeal Rules, 2022, the certified copy of the decree/order must be certified as true by the Deputy Registrar of the superior court but need not be certified by the trial judge or judicial officer who made it.
- The absence of a certified decree under Rule 8(9) does not render a record of appeal fatally defective; it is a curable irregularity.
- Where there is a long chain of unexplained possession, the Court has to go back in history to ascertain the root of title of the person claiming title by adverse possession.
- In an appeal from the Environment and Land Court, the certified copy of the decree must be extracted and certified in accordance with the nature of the proceedings before that Court, including orders of a declaratory nature.
Court orders
#- 1.The Notice of Motion dated 16th March, 2023 be and is hereby dismissed.
- 2.The Applicants shall pay the Respondent costs of this application assessed at Kenya Shillings Sixty Thousand (Kshs. 60,000/-) to be paid within thirty (30) days hereof, failing which the Appeal stands dismissed for want of prosecution.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC Case No. 56 of 2015 (O.S.)
- Jurisdiction invoked
- First appellate jurisdiction under Article 164(1) of the Constitution and sections 72 and 73 of the Civil Procedure Act over appeals from the Environment and Land Court
Relief refused
#Certification of the appeal as one raising a matter of general public importance (or in the alternative, leave for the appeal to proceed as a matter of priority) on grounds of the alleged defective record of appeal
The record of appeal as filed was found to be complete and compliant; the Memorandum of Record of Appeal is not a pleading under Rule 16(2); the consolidated appeal was properly filed and prosecuted; and the applicants acquiesced in the state of the record by failing to respond to the Deputy Registrar's letter and by drawing and filing the decree in HCCC No. 42 of 2014 after judgment in favour of the 1st respondent.
Dismissal of the appeal for want of a certified decree and non-compliance with Rule 16(2)
The certified decree must be drawn in line with the judgment but need not be certified by a judicial officer; the Deputy Registrar's rejection was based on a misreading of the Practice Directions and of Rule 8(9), and the memorandum of appeal is not a pleading.
Costs
The Applicants shall pay the Respondent costs of the application assessed at Kenya Shillings Sixty Thousand (Kshs. 60,000/-) to be paid within thirty (30) days hereof, failing which the Appeal stands dismissed for want of prosecution.
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.
in the absence of the certified order granting leave to file an appeal out of time, this appeal is incompetent and it is hereby struck out with costs to the Respondent.
A Record of Appeal, in a first appeal, is a single document which must contain specific documents which include the pleadings, the judgment or order appealed against and a certified copy of the decree, among others.
Rule 16(2) is therefore couched in mandatory terms. A record of appeal filed in breach of the requirement of Rule 16(2) is fatally defective.
It must be remembered that an appeal is filed by a Memorandum of Appeal and not a Memorandum of Record of Appeal. The latter, in our view, is an appendage to the appeal and not a document in itself.
The absence of a decree under Rule 8(9) does not, in our view, render the Record of Appeal fatally defective.
the Registrar's certification was a preliminary and ministerial act which does not preclude this Court from reconsidering the issue when the matter comes up for the substantive hearing
there is no appeal filed by the 1st Appellant. She cannot ride on the backs of the 2nd to 6th Appellants
where there is a long chain of unexplained possession, the Court has to go back in history to ascertain the root of title of the person claiming title by adverse possession
the Court finds that the appeal is properly before it and that the Record of Appeal as filed is compliant with the requirements of Rule 16(2) of the Court of Appeal Rules, 2022, and this Court's Practice Directions on Electronic Filing.
Issues in the judgment
#The judgment contains a minor typographical anomaly in the final orders, where the order striking out the appeal refers to the appeal as 'hereby struck out' but the operative order begins with the words 'in the absence of the certified order granting leave to file an appeal out of time', which appears to conflate the lack of certification by the Registrar with the competence of the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gichanga v Gituro (Civil Appeal 142 of 2017) [2026] KECA 432 (KLR)[2026] KECA 432 (KLR)6 Mar 2026followed
- Gerald & another v Blatterman (Thro' his Attorney Shabir Hatim ali Taheri) & 2 others (Environment and Land Appeal 35 of 2022) [2025] KEELC 8063 (KLR)[2025] KEELC 8063 (KLR)20 Nov 2025followed
- Muthoni (Suing as Legal Representatives of the Estate of Michael Anjere) v Namadi & another (Environment and Land Appeal E024 of 2023) [2024] KEELC 7421 (KLR)[2024] KEELC 7421 (KLR)7 Nov 2024applied
Cite this brief
#Cite this brief
Caselaw, "Muiruri & 2 others v Blaetermann (Suing through Shabir Hatim Ali) & another (Civil Appeal E023 of 2022) [2024] KECA 1160 (KLR)", Case Analysis (2024). Civil Appeal 127 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1160/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.