Rose Jemutai Joseph Chelale v Hoyi Abdala Latama [2022] KEELC 1023 (KLR)
The bottom line
#The Environment and Land Court in Kitale struck out a land appeal because it was filed late, incomplete, and by someone who was never a party to the original case.
What this practically means
#Executive summary
#Key legal issues
#Competency of the Record of Appeal under Order 42 Rule 13
The Record of Appeal was incurably defective for omitting the order granting extension of time and the order arising from the ruling appealed against, and the memorandum was filed outside the seven-day leave period granted on 2/2/2021
Order 42 Rule 13 lists documents that must be in the record of appeal and which cannot be dispensed with. Perusal showed the two orders missing, and that filing on 11/2/2021 exceeded the 9/2/2021 deadline, rendering the appeal improperly before the court.
Whether the appeal was filed by a competent party
The appellant, Rose Jemutai Joseph Chalale, was a stranger to the proceedings in which the defendant was Rose Chebiwott Ntulele; she neither applied to be enjoined nor to amend pleadings
The Plaint and documents named Rose Chebiwott Ntulele as defendant and the decree issued against her. The person appealing bore a different name, never sought joinder or amendment, and did not appeal the ruling herself, so the appeal was incompetent.
Whether the court should consider the merits of the appeal
The court declined to consider the merits as it would be an academic exercise given the fatal defects
Since no competent appeal existed and, alternatively, any appeal would have been by a total stranger, the court found it unnecessary to engage with the merits of the grounds challenging the setting-aside ruling.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by a lower court unless the discretion was exercised injudiciously or on wrong principles
- A Record of Appeal is incurably defective where it omits the order granting leave to appeal and the order appealed from, as required by Order 42 Rule 13
- An appeal filed by a stranger to the proceedings below is incompetent and cannot be cured by Article 159(2)(d) or the court's inherent powers
Court orders
#- 1.The appeal is struck out
- 2.Costs of the appeal are awarded to the Respondent, to be borne by the purported appellant
- On appeal from
- Kitale Chief Magistrate's Court (Land Case No. 78 of 2019)
- Kitale CM Land Case No. 78 of 2019
- Jurisdiction invoked
- Appeal against ruling of the trial court in Kitale CM Land Case No. 78 of 2019 pursuant to the Civil Procedure Rules (Order 42) and Article 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Jemutai Joseph Chelale v Hoyi Abdala Latama [2022] KEELC 1023 (KLR)", Case Analysis (2022). Kitale ELC Appeal (against ruling in Kitale CM Land Case No. 78 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1023/eng@2022-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.