Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application dated 21st May 2025 arising from ELC No. 30 of 2021 (O.S)

Miyaba & 2 others v Areri (Suing on Behalf and Personal Representative of Naftali Nyaberi Mangerere - Deceased) (Civil Application NAK 91 of 2024) [2025] KECA 1299 (KLR)

Court of Appeal of Kenya
18 July 2025
1,767 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal dismissed a bid to kill an appeal because the respondents met their deadline, and personally penalised the applicant's advocate for misleading the court.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nakuru (Warsame, Mativo and Odunga, JJAA) delivered on 18th July 2025 on an application dated 21st May 2025 by Henry Sikubi Nyaberi Areri, the successful plaintiff before the Environment and Land Court in ELC No. 30 of 2021 (O.S), where he obtained judgment on 25th July 2024 declaring him entitled to 13½ acres of Narok/Transmara/Poroko/221 by adverse possession and transfer. The respondents filed a notice of appeal and sought injunction/conservatory orders under rule 5(2)(b); on 10th December 2024 the Court maintained the status quo on condition that they file and serve a record of appeal within 30 days. The applicant then moved to strike out the notice of appeal dated 2nd August 2024 and the memorandum of appeal dated 19th September 2024, contending non-compliance with that order. Before the Court, counsel for the applicant argued for the first time in submissions that service had been effected on a wrong e-mail address not belonging to his firm. The Court held that submissions are not evidence and cannot substitute for pleaded averments, applying Kenya Commercial Bank Ltd v Sheikh Osman Mohammed and Daniel Toroitich arap Moi v Mwangi Stephen Muriithi. It further found the disputed g-mail address appeared in counsel's own pleadings, condemned his repeated denial as blatant dishonesty, and found the respondents had filed and served their record of appeal on 28th December 2024 in compliance with the Court's orders. The application was dismissed with costs awarded against Mr. Sagwe Advocate personally. The intended appeal itself was not determined and remains pending.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents complied with this Court's orders of 10th December 2024 requiring them to file and serve a record of appeal within 30 days
  2. 2.Whether the notice of appeal dated 2nd August 2024 and the memorandum of appeal dated 19th September 2024 ought to be struck out and the appeal dismissed
  3. 3.Whether an argument raised for the first time in counsel's submissions (that service was effected on a wrong e-mail address) can be entertained

Key legal issues

#
01

Compliance with orders to file and serve a record of appeal within 30 days

Holding

The respondents complied: the record of appeal was filed on 28th December 2024 together with assessed security costs and served the same day by e-mail, within the 30 days allowed by the order of 10th December 2024.

Reasoning

The Court examined the record and found a record of appeal filed on 28th December 2024, within 30 days of the 10th December 2024 order, with security costs assessed and paid, and served on the applicant's counsel by e-mail the same day at 2:38pm. The applicant's sole pleaded ground was breach of that order, so once compliance was established the application fell away.

p. 4
02

Whether the alleged non-service/wrong e-mail address argument could be entertained

Holding

No. The ground was raised for the first time in counsel's submissions; it was not pleaded in the supporting affidavit, and submissions do not constitute evidence. In any event, the record shows counsel himself used the disputed g-mail address in his own pleadings.

Reasoning

The Court could not locate any averment in the supporting affidavit of 21st May 2025 alleging the wrong e-mail address. Relying on KCB v Sheikh Osman Mohammed on the function of pleadings and Daniel Toroitich arap Moi v Mwangi Stephen Muriithi on submissions not being evidence, the Court declined the argument. It further found the g-mail address appeared in counsel's own originating summons and re-amended originating summons, defeating the claim that it was not his.

p. 3
03

Candour of counsel and personal costs

Holding

Counsel's denial that the g-mail address belonged to his firm was blatant dishonesty, repeated even after clarification; the Court took exception and ordered him to bear the costs of the application personally.

Reasoning

The Court held that advocates are bound by professional codes emphasising honesty, integrity and respect for the courts, and owe a paramount duty to the Court. Because Mr. Sagwe repeatedly made a false statement about his e-mail address despite the address appearing in his own court documents, the Court visited the costs consequences on him personally rather than on his client.

p. 4

Legal principles established

#
  • Submissions made by counsel do not amount to evidence and cannot take the place of pleaded evidence unless expressly adopted as such; a party cannot rely on arguments raised for the first time in submissions where they are not pleaded in the supporting affidavit.
  • Pleadings must inform the other party and the court with sufficient clarity of the case to be met; a court in civil litigation must not speculate or surmise as to the nature of a party's claim.
  • Advocates owe a paramount duty of honesty and candour to the Court; willfully making false statements or attempting to deceive the Court constitutes misconduct that can attract disciplinary action and personal costs orders.

Court orders

#
  1. 1.The application dated 21st May 2025 is dismissed
  2. 2.Costs of the application to be borne by Mr. Sagwe Advocate personally

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
majority
On appeal from
Environment and Land Court
ELC No. 30 of 2021 (O.S)
Jurisdiction invoked
Rules 42, 43, 87(1) and (2) and 88 of the Court of Appeal Rules, 2022; sections 1A, 1B and 3A of the Appellate Jurisdiction Act

Relief refused

#

Striking out of the respondents' notice of appeal dated 2nd August 2024 and memorandum of appeal dated 19th September 2024, and dismissal of the appeal

The respondents duly filed and served the record of appeal on 28th December 2024 in compliance with the Court's orders of 10th December 2024, and the non-service argument was raised only in submissions, not in the supporting affidavit

p. 4

Costs

The application was dismissed with costs to be borne by Mr. Sagwe Advocate personally

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.

We are satisfied that the respondents duly complied with this Court's orders issued on 10th December 2024. Consequently, the application dated 21st May 2025 is devoid of merit. The inevitable conclusion is that the said application is hereby dismissed with costs to be borne by Mr. Sagwe Advocate personally.
p. 4Final orders/disposition
Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid.
p. 3Submissions are not evidence
Pleadings must be deployed to serve their function, namely to inform the other party, and the court, with sufficient clarity what their case is so that the other party may have a fair opportunity to meet that case
p. 3Function of pleadings
Willfully making false statements, suppressing material facts or attempting to deceive the Court constitutes misconduct that can lead to disciplinary action.
p. 4Advocates' duty of candour

Issues in the judgment

#
minor

The judgment records the notice of appeal as both 'dated 2nd August 2024' (in the application and grounds) and as 'filed ... on 7th August 2024' in the narrative; the date discrepancy is not reconciled on the face of the judgment.

minor

The applicant's ground, as summarised, refers to failure to file a record of appeal 'within 60 days', whereas the Court's order of 10th December 2024 allowed 30 days; the judgment does not explain the reference to 60 days.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Miyaba & 2 others v Areri (Suing on Behalf and Personal Representative of Naftali Nyaberi Mangerere - Deceased) (Civil Application NAK 91 of 2024) [2025] KECA 1299 (KLR)", Case Analysis (2025). Civil Application dated 21st May 2025 arising from ELC No. 30 of 2021 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1299/eng@2025-07-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.