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ELCStruck OutNot stated in the judgment (Memorandum of Appeal dated 13th July 2020)· [2022] KEELC 489 (KLR)

Lucas Otieno Masaye v Lucia Olewe Kidi [2022] KEELC 489 (KLR)

Environment and Land Court of Kenya
31 March 2022
AOANTONY OMBWAYO
1,404 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 a land appeal because the appellant failed to attach the lower court's decree, confirming this omission is fatal, not fixable.

What this practically means

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Executive summary

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The Appellant had sued the Respondent in the magistrate's court seeking a declaration that the Respondent held parcel KISUMU/WANGAYA '1'/3522 in trust for him, amongst other orders. By judgment delivered on 25/6/2020 the trial magistrate dismissed the suit on the ground that the issues ought to have been resolved in the pending Kisumu Succession Cause No. 647 of 2012. The Appellant lodged this appeal on nine grounds, principally that the magistrate ignored customary trust arising under Section 28 of the Land Registration Act and wrongly held that he lacked jurisdiction. The Appellant filed no submissions; only the Respondent did. The Respondent contended that the failure to attach a decree to the record of appeal rendered the appeal incompetent, relying on Order 42 Rule 13(4) of the Civil Procedure Rules and the Kakamega Election Petition Appeal authority. The court framed two issues: the duty of a first appellate court, and whether failure to attach a decree is fatal. It recited its re-evaluative duty under Section 78 of the Civil Procedure Act but never reached the merits. Noting that the record of appeal indeed contained no decree, and applying Order 42 Rules 2 and 13(4)(f) together with Bwana Mohamed Bwana and Chege v Suleiman - which characterize the omission as jurisdictional rather than merely procedural - the court held the appeal incompetent. The appeal was struck out with costs to the Respondent.

Key legal issues

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01

Whether failure to attach a decree to the record of appeal is fatal to the appeal

Holding

Yes - the omission renders the appeal incompetent and divests the court of jurisdiction; the appeal was struck out

Reasoning

Order 42 Rule 2 and Rule 13(4)(f) of the Civil Procedure Rules require a certified copy of the decree on the record. The record of appeal contained no decree. Relying on Bwana Mohamed Bwana and Chege v Suleiman, the court held the omission is jurisdictional and fatal, leaving it without adjudicatory powers over the appeal.

p. 3
02

Duty of a first appellate court

Holding

A first appellate court must re-evaluate, reassess and reanalyze the evidence and draw its own conclusions, while bearing in mind it did not see or hear the witnesses

Reasoning

The court outlined its duty under Section 78 of the Civil Procedure Act, citing Peter M. Kariuki v Attorney General. However, having found the appeal incompetent for want of a decree, this duty was never exercised and no re-evaluation of the evidence took place.

p. 2

Legal principles established

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  • An appeal is rendered fatally defective and incompetent in the absence of a decree attached to the record of appeal
  • Failure to attach the decree is a jurisdictional, not merely procedural, point

Court orders

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  1. 1.The appeal is struck out with costs to the Respondent

Authorities

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Legislation

  • Land Registration ActSection 28
  • Law of Succession ActSection 45
  • Constitution of KenyaArticle 162(2)
  • Environment and Land Court Act Cap 12ASection 13
  • Civil Procedure Rules 2010Order 42 Rule 2; Order 42 Rule 13(4)(f); Order 42 Rule 13(4)
  • Civil Procedure ActSection 78; Section 66; Section 79B

Cases cited (4)

  • KAKAMEGA ELECTION PETITION APPEAL NO.3 OF 2018 ELVIS ANYIMBO SICHENGA VS ODM & OTHERS
    (2016) eKLR
  • Peter M. Kariuki v Attorney General
    [2014] eKLR
  • Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others
    [2015] eKLR
  • Chege v Suleiman
    [1988] eKLR
On appeal from
Magistrate's Court at Kisumu (lower court)
Not stated (suit concerning KISUMU/WANGAYA '1'/3522; related Succession Cause: Kisumu Succession Cause No. 647 of 2012)
Jurisdiction invoked
First appellate jurisdiction over the magistrate's court (Environment and Land Court Act; Civil Procedure Act section 78 and section 66 discussed)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lucas Otieno Masaye v Lucia Olewe Kidi [2022] KEELC 489 (KLR)", Case Analysis (2022). Not stated in the judgment (Memorandum of Appeal dated 13th July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/489/eng@2022-03-31

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