Ondieki v Kemuma
The bottom line
#Kenya's Court of Appeal ruled that a first appeal court must dismiss an appeal where the appellant defaults, not write a judgment on the merits.
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 ELC as the first appellate court could proceed to determine the appeal where the respondent (appellant therein) had not complied with Order 42 rules 16 and 20 of the Civil Procedure Rules
- 2.Whether the ELC could determine the issue of adverse possession in favour of the respondent in the absence of a counterclaim and where the trial court lacked jurisdiction over adverse possession
- 3.Whether adverse possession was established by the respondent
Key legal issues
#Consequence of an appellant's default under Order 42 rule 20 of the Civil Procedure Rules
The first appellate court erred in delivering a merits judgment where the appellant therein neither filed a declaration/submissions nor appeared; the correct course was dismissal of the appeal under Order 42 rule 20, with reinstatement available under rule 21
The record showed the respondent (appellant in the ELC) repeatedly failed to file submissions or attend mentions without filing a rule 16 declaration. Order 42 rule 20 prescribes dismissal, not judgment, in such default. A judgment on the merits creates res judicata and renders the ELC functus officio, forcing an expensive second appeal, whereas dismissal allows the defaulting appellant to seek readmission under rule 21 upon showing sufficient cause.
Whether the ELC's judgment was irregular for allowing an appeal not actively urged
Yes; the preliminary ground succeeded and the impugned judgment was treated as irregular, precluding any consideration of the merits
The court found the respondent's appeal before the ELC was allowed despite his persistent default in filing submissions and attending court. The ELC should have dismissed the appeal or given further directions; instead it fixed and delivered judgment. The court therefore declined to evaluate the adverse possession and jurisdiction issues, which it left undetermined.
Scope of second appeal jurisdiction
The Court on second appeal cannot re-evaluate or re-assess findings of fact, absent perversity or absence of evidence
Relying on Kenya Breweries Limited v Godfrey Odoyo, the court reaffirmed that a second appeal is confined to matters of law and the Court must resist the temptation of delving into matters of fact. Because the court allowed the appeal on the procedural ground, it did not engage the factual merits of adverse possession.
Legal principles established
#- Where an appellant before the first appellate court is in default under Order 42 rule 20, the court must dismiss the appeal (with liberty to seek reinstatement under rule 21) and may not instead craft a judgment on the merits
- The jurisdiction of the Court of Appeal on a second appeal is confined to questions of law only
Court orders
#- 1.Appeal allowed
- 2.Judgment and decree of the ELC set aside together with all processes flowing therefrom
- 3.First appeal before the ELC dismissed with costs to the appellant
- 4.Respondent to pay the appellant's costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Kisii
- ELC Appeal No. 28 of 2019
- Jurisdiction invoked
- Second appeal to the Court of Appeal limited to matters of law (section 72 of the Civil Procedure Act framework as invoked by the court; jurisdiction stated as 'strictly limited to questions of law only')
Relief refused
#Determination of the merits of the adverse possession and jurisdiction issues
The court declined to delve into the merits because the impugned judgment was irregularly obtained after the respondent's default under Order 42 rule 20
Costs
First appeal dismissed with costs to the appellant; the respondent to pay the appellant's costs of this appeal
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 satis?ed that where the appellant is in default as contemplated under Order 42 rule 20, the ELC should not craft a judgment which would in that event, like in the instant impugned judgment subject of this appeal, be speculative about the grounds of appeal.
Order 42 rule 20 of the Civil Procedure Rules prescribes a dismissal and not a judgment in the event that the appellant before the superior court is in default.
In the premises we allow the appeal; set aside the judgment and decree of the ELC subject of this appeal together with all processes ?owing therefrom, and substitute therefor an order dismissing the ?rst appeal with costs for the appellant herein; and, the respondent to pay the appellant?s costs of this appeal.
Our jurisdiction on a second appeal is strictly limited to questions of law only.
Issues in the judgment
#The ELC judgment is quoted stating the appellant therein did not file submissions, yet the record shows Mr. Soire repeatedly asserted he had filed the appellant's submissions; the discrepancy is not reconciled
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ondieki v Kemuma", Case Analysis (2026). Civil Appeal E154 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1872/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.