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ELCStruck OutEnvironment and Land Court Appeal (Nakuru) — memorandum of appeal filed 18th February 2016 (number not stated in judgment)· [2020] KEELC 1208 (KLR)

Addi Maingi Gitau v Loice Wanjiru Mwangi [2020] KEELC 1208 (KLR)

Environment and Land Court of Kenya
1 October 2020
1,850 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out an appeal because the memorandum of appeal was unsigned and undated — such a document is a legal nullity that no court can rescue.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nakuru against the judgment of Hon. J. Wanyanga (RM) in Molo CMCC No. 332 of 2010, delivered on 4th February 2016. The respondent, suing as administrator of the estate of her late husband, had claimed a one-third share of L.R 533/329 Molo Township bought on 7th July 1977 from Erastus Gitau, seeking a declaration of ownership, a perpetual injunction and costs; the magistrate allowed all her prayers with costs and indicated she could move for specific performance. The appellant, who described himself as a son of Erastus Gitau and as the 2nd defendant though never formally joined, appealed in person on grounds that the magistrate erred in finding for the plaintiff despite evidential shortcomings and in disregarding the defence evidence of varied agreements. Before reaching those grounds, the court sua sponte examined the memorandum of appeal and found that both the copy and the original filed on 18th February 2016 were undated and unsigned. Holding that a memorandum of appeal is a pleading which must be signed under Order 42 Rule 1(1) and Order 2 Rule 16 of the Civil Procedure Rules, and that the requirement is substantive and mandatory — following Vipin Maganlal Shah, Samaki Industries, Mumo Matemu and Southern Engineering — the court declared the memorandum a nullity, struck out the appeal, and made no order as to costs since the respondent had filed no submissions.

Key legal issues

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01

Existence of a valid appeal where the memorandum of appeal is unsigned and undated

Holding

The memorandum of appeal is a pleading which must be signed and dated by the party or advocate; an unsigned and undated memorandum is a nullity and no appeal exists.

Reasoning

Order 42 Rule 1(1) requires an appeal to be by way of a memorandum of appeal signed as a pleading, and Order 2 Rule 16 mandates signature by advocate, recognised agent or party in person. Signature makes the litigant own the case; the memorandum initiates the appellate process and determines whether an appeal exists at all. The defect is substantive, not a curable technicality, and cannot be salvaged under Article 159(2)(d) or the overriding objective.

p. 2
02

Whether substantive justice provisions can cure a nullity

Holding

They cannot; Article 159(2)(d), the inherent jurisdiction and the overriding objectives cannot be invoked to validate an act that is a nullity under the law.

Reasoning

Relying on Southern Engineering Co. Limited v Heady Berge Limited, the court held that where a party's own act is declared a nullity, the constitutional directive on substantive justice and the court's inherent jurisdiction offer no rescue. The requirement of signature is mandatory and goes to the root of the pleadings; belatedly procuring a signature would impermissibly validate a void document.

p. 2

Legal principles established

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  • An unsigned (and undated) memorandum of appeal is a nullity and nothing can be founded on it; the defect is substantive and cannot be cured under Article 159(2)(d) or the overriding objective.
  • Compliance with rules of procedure is not antithetical to the court's mission of doing substantive justice.

Court orders

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  1. 1.Striking out of the memorandum of appeal filed on 18th February 2016
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 1(1)
  • Civil Procedure RulesOrder 2 Rule 16
  • Civil Procedure RulesOrder 2 Rule 14
  • Environment and Land Court ActSection 3
  • Civil Procedure ActSections 1A and 1B
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (5)

  • Vipin Maganlal Shah & another v Investment & Mortgages Bank Limited & 2 others
    [2001] eKLR
  • Great Australian Gold Mining Co v Martin
    (1877) 5 Ch D 1
  • Samaki Industries (Nairobi) Ltd v Samaki Industries (K) Ltd
    Civil Appeal No 203 of 1995 (Unreported)
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Southern Engineering Co. Limited v Heady Berge Limited & another
    [2019] eKLR
On appeal from
Chief Magistrate's Court, Molo
Molo CMCC No. 332 of 2010
Jurisdiction invoked
First appellate jurisdiction over appeals from the subordinate court (appellate powers under Section 3 of the Environment and Land Court Act referenced in the judgment); appeal transferred from the High Court on 18th July 2018

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Addi Maingi Gitau v Loice Wanjiru Mwangi [2020] KEELC 1208 (KLR)", Case Analysis (2020). Environment and Land Court Appeal (Nakuru) — memorandum of appeal filed 18th February 2016 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1208/eng@2020-10-01

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