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ELCStruck OutAppeal dated 26th February 2021 (number not stated)· [2024] KEELC 5433 (KLR)

Nduba v Wanza (Environment and Land Appeal E012 of 2021) [2024] KEELC 5433 (KLR)

Environment and Land Court
18 July 2024
OAO. A. Angote
594 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out an appeal because the appellant never filed a complete record of appeal on the e-filing system.

What this practically means

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Executive summary

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This was an appeal dated 26th February 2021, lodged in the Environment and Land Court at Nairobi against a judgment of the lower court delivered on 30th April 2020. The Appellant sought that the appeal be allowed, that the lower court's judgment be set aside and judgment entered in the Appellant's favour, together with costs. Order 42 Rule 13(4) of the Civil Procedure Rules requires that, before an appeal proceeds to hearing, the memorandum of appeal, pleadings, trial magistrate's notes, transcript, all evidence documents and the judgment appealed from must be on the court record. A perusal of the e-filing portal revealed that the Appellant's advocate had filed only a table of contents for the record of appeal on 27th August 2022, but never filed any substantive record of appeal. When the Respondent's advocate noted the incompleteness, the Appellant's advocate undertook to re-serve the record, and the Court ordered re-service and exchange of submissions. As of 9th July 2024, no complete record of appeal had been filed. The Court held that documents not on the e-filing system are deemed not to be on the court record, that it could not consider the parties' submissions because the mandatory pleadings and documents needed for a fair and just determination were absent, and that, applying Grace Njeri Theuri vs John Mburu Wainaina [2022] eKLR, an appeal cannot proceed to hearing unless the record of appeal is duly filed. The Court struck out the appeal with costs on 18th July 2024.

Key legal issues

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Whether the appeal could be heard where the record of appeal was never completely filed on the e-filing portal

Holding

The appeal was struck out because the mandatory documents under Order 42 Rule 13(4) were not on the court record and submissions could not be considered without them

Reasoning

Order 42 Rule 13(4) of the Civil Procedure Rules mandates that the pleadings, memorandum of appeal, magistrate's notes, judgment and all documents put in evidence be on the record before an appeal proceeds to hearing. The Appellant only filed a table of contents on 27th August 2022 and never filed a substantive record of appeal. Without these mandatory documents the Court could not fairly consider the parties' submissions, and the only available course was to strike out the appeal with costs.

p. 2

Legal principles established

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  • An appeal cannot proceed to hearing unless a complete record of appeal containing the documents specified in Order 42 Rule 13(4) of the Civil Procedure Rules is duly filed

Court orders

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  1. 1.The appeal is struck out with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 13(4)

Cases cited (1)

  • Grace Njeri Theuri vs John Mburu Wainaina
    [2022] eKLR
On appeal from
Lower court (magistrates' court)
Jurisdiction invoked
First appeal under Order 42 of the Civil Procedure Rules (specific provision invoking the court's jurisdiction not stated)

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, "Nduba v Wanza (Environment and Land Appeal E012 of 2021) [2024] KEELC 5433 (KLR)", Case Analysis (2024). Appeal dated 26th February 2021 (number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5433/eng@2024-07-18

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