Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELCA Case No. 12 of 2019· [2020] KEELC 1260 (KLR)

Phylis Ayoti v Samson Opicha [2020] KEELC 1260 (KLR)

Environment and Land Court
28 September 2020
NMN.A. Matheka
1,053 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court threw out a land appeal because the appellant never filed the decree she was appealing against.

What this practically means

#

Executive summary

#
This was an appeal to the Environment and Land Court at Kakamega against the decision of the Provincial Land Disputes Appeal Tribunal in Case No. 30 of 2005, adopted in Kakamega SRM Misc. Award No. 38 of 2004. The appellant raised four grounds: that the tribunal exceeded its jurisdiction, awarded land the respondent was not entitled to, failed to hear the parties or visit the land, and was biased. She sought the quashing or setting aside of the tribunal findings with costs. The respondent objected that no certified decree or order was filed as part of the Record of Appeal, that the appeal was filed more than a year out of time under section 79G of the Civil Procedure Act, and that the tribunal award was never adopted as a judgment of court - the appellant's own adoption application in Kakamega CMCC Misc. Application 28 of 2004 having been rejected. The court, per N.A. Matheka J, agreed. Relying on Order 42 Rules 2 and 13(4) of the Civil Procedure Rules and section 79G, and following Joseph Kamau Ndungu v Peter Njuguna Kamau, it held that the decree or order appealed from is an inextricable part of an appeal; without it there is in effect no appeal. Since no decree was attached and the award was never adopted as a judgment of court, the appeal was incompetent and unmerited. The appeal was dismissed with costs to the respondent.

Key legal issues

#
01

Whether the Record of Appeal must contain the certified decree or order appealed from

Holding

The appeal fails because the decree or order appealed from was not filed or attached to the record

Reasoning

Order 42 Rules 2 and 13(4) of the Civil Procedure Rules require a certified copy of the decree or order appealed from to be filed with the memorandum of appeal and to be on the record before the appeal proceeds. The record showed no decree, and the tribunal award was never adopted as a judgment of court - the appellant's adoption application in Kakamega CMCC Misc. Application 28 of 2004 was in fact rejected. Following Joseph Kamau Ndungu v Peter Njuguna Kamau, the appeal could not stand.

p. 1
02

Timeliness of the appeal under section 79G

Holding

The court noted the appeal was filed more than a year after the tribunal decision, rendering it incompetent absent good and sufficient cause

Reasoning

The respondent submitted the appeal filed on 26th April 2007 was brought long after the decision of 10th March/May 2006, beyond the thirty-day window in section 79G, and that section 8(9) of the Land Disputes Tribunal Act imposed a mandatory duty of compliance. The court treated the absence of the decree and non-adoption of the award as fatal, and did not excuse the delay.

p. 2

Legal principles established

#
  • A decree or order appealed from is an inextricable part of an appeal to the Environment and Land Court; without it there is no appeal

Court orders

#
  1. 1.The appeal is dismissed with costs
  2. 2.It is so ordered

Authorities

#

Legislation

  • Civil Procedure Actsection 2
  • Civil Procedure Actsection 79G
  • Civil Procedure Actsection 79B
  • Civil Procedure RulesOrder 42 Rule 2
  • Civil Procedure RulesOrder 42 Rule 13(4)
  • Land Disputes Tribunal Actsection 8(9)

Cases cited (2)

  • Margaret Nafuna Wafula vs. Wilson Kimutai Sirma & Another
    Kitale Civil Appeal No. 8 of 2000
  • Joseph Kamau Ndungu vs Peter Njuguna Kamau
    (2014) eKLR
On appeal from
Provincial Land Disputes Appeal Tribunal at Kakamega (adopted vide Kakamega SRM Misc. Award No. 38 of 2004)
Case No. 30 of 2005
Jurisdiction invoked
Appeal from a subordinate tribunal to the High Court under section 79G of the Civil Procedure Act; Land Disputes Tribunal Act section 8(9)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Phylis Ayoti v Samson Opicha [2020] KEELC 1260 (KLR)", Case Analysis (2020). ELCA Case No. 12 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1260/eng@2020-09-28

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