Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherNot stated in the judgment

Olegesalie New Properties Limited v Lematasho (Environment and Land Appeal E003 of 2022) [2025] KEELC 1218 (KLR)

Environment and Land Court
6 March 2025
991 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

#

A Kenyan court refused to strike out an incomplete land appeal, letting the appellant fix the missing documents within 30 days.

What this practically means

#

Executive summary

#
This is a ruling delivered by the Environment and Land Court at Kajiado (M.D. Mwangi, J) on 6th March 2025 in an appeal from a magistrates' court, where judgment had been scheduled for delivery. On retiring to prepare the judgment, the court discovered that the Appellant's record of appeal dated 24th February 2022 omitted crucial documents: two applications, a preliminary objection with the Defendant/Respondent's replying affidavit, the Plaintiff's further supplementary list of documents, DW2's witness statement, a reply to the amended defence and counterclaim, the amended statement of defence (incomplete), and the Appellant's submissions. The court noted that counsel had certified the record as correct under the Civil Procedure Rules, 2010, an assertion the court found incorrect. Applying Order 42 Rule 13(4), which prescribes the mandatory contents of a record of appeal, and the Supreme Court's decisions in Bwana v Bonaya (quoting Law Society of Kenya v Centre for Human Rights and Democracy) and Kidero v Waititu, the court held that an appeal without a complete record is incompetent and defective, divesting the court of jurisdiction over the controversies it embodies. However, invoking Article 159(2)(d) of the Constitution and Section 18(c) of the Environment and Land Court Act, and the imperative of doing justice without undue regard to procedural technicalities, the court declined to strike out the appeal. It vacated the directions on delivery of judgment, directed mention within 30 days, and ordered the Appellant to file a supplementary record of appeal containing all missing documents, filed chronologically. No costs order was made. The decision below was not disturbed at this stage.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the record of appeal dated 24th February 2022 is complete as required by Order 42 Rule 13(4) of the Civil Procedure Rules, 2010
  2. 2.Whether an appeal lacking crucial documents in its record is incompetent and liable to be struck out
  3. 3.Whether the court should nonetheless save the appeal under Article 159(2)(d) of the Constitution and Section 18(c) of the Environment and Land Court Act

Key legal issues

#
01

Completeness of the record of appeal under Order 42 Rule 13(4) of the Civil Procedure Rules, 2010

Holding

The record of appeal was incomplete and the certificate of record affirming its correctness was incorrect

Reasoning

The court enumerated eight categories of missing or incomplete documents, including applications, a preliminary objection, witness statements, pleadings and submissions, all of which were referenced in the trial proceedings or the trial court's judgment. Counsel's certificate of record affirming the correctness of the record was therefore demonstrably wrong. Order 42 Rule 13(4) prescribes the mandatory contents of a record of appeal.

p. 2
02

Competence of an appeal founded on an incomplete record

Holding

The appeal is incompetent and subject to striking out, following the Supreme Court's guidance in Bwana v Bonaya

Reasoning

Relying on the Supreme Court's decision, the court held that a court cannot determine an appeal without a record of appeal, and that omission of the requisite bundle of documents renders the appeal incompetent and divests the court of jurisdiction over the factual and legal controversies it embodies. The appeal before the court was therefore strictly speaking incompetent and subject to striking out.

p. 2
03

Whether the court should exercise its discretion to save the appeal despite the technical deficiency

Holding

The court invoked Article 159(2)(d) and Section 18(c) of the Environment and Land Court Act to save the appeal and allow a supplementary record

Reasoning

Guided by Article 159(2)(d) of the Constitution and restated in Section 18(c) of the Environment and Land Court Act, and adopting the Supreme Court's pronouncement in Kidero v Waititu on managerial judging and rejection of mechanical resort to procedural technicalities, the court rose to 'its higher calling to do justice', vacated the judgment date and allowed the Appellant to file a supplementary record of appeal containing all missing documents.

p. 3

Legal principles established

#
  • Without a complete record of appeal, an appeal is incompetent and defective, and a court cannot exercise its adjudicatory powers over it
  • Courts should not mechanically strike out an appeal for procedural technicality where justice can be done by allowing the defect to be remedied, per Article 159(2)(d) of the Constitution

Court orders

#
  1. 1.The directions on delivery of judgment are vacated
  2. 2.The matter to be mentioned in 30 days, within which time the Appellant must file a supplementary record of appeal containing all the missing documents outlined
  3. 3.The Appellant is directed to ensure that the documents are filed in a chronological manner

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrates' court (trial court, name not stated in the judgment)
Jurisdiction invoked
Article 159(2)(d) of the Constitution and Section 18(c) of the Environment and Land Court Act (the court sits on first appeal from the trial court)

Relief refused

#

Delivery of the scheduled judgment on the appeal

The record of appeal was incomplete, missing crucial documents, and judgment could not be delivered on a defective record

p. 3

Costs

No costs order made in the judgment

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Without a record of appeal a Court cannot determine the appeal cause before it. Thus, if the requisite bundle of documents is omitted, the appeal is incompetent and defective, for failing the requirements of the law.
p. 2Effect of an incomplete record of appeal on competence
An incompetent appeal divests a Court of the jurisdiction to consider factual or legal controversies embodied in the relevant issues.
p. 2Jurisdiction over incompetent appeals
The appeal before me is therefore strictly speaking incompetent. It is subject to striking out.
p. 2Court's finding on the appeal as filed
Guided by Article 159 of the Constitution, this court will rise to its higher calling to do justice by saving the appeal and allow the Appellant an opportunity to remedy the situation by filing a supplementary record of appeal containing all missing documents.
p. 3Discretionary saving of a defective appeal under Article 159
Consequently, the directions on delivery of judgment are hereby vacated. The matter will be mentioned in 30 days within which time the Appellant must file the supplementary record of appeal including all the missing documents outlined above.
p. 3Final orders

Issues in the judgment

#
minor

The judgment is dated 6th March 2025 but the opening paragraph states the court slated the matter for delivery of judgment on '6th March, 2024', an apparent typographical error

material

The judgment does not state the case title, case number, or the names of the parties; the parties are identified only by their roles as Appellant/Plaintiff and Defendant/Respondent

minor

The status of the trial court's ruling on the preliminary objection and replying affidavit, expected on 2/3/2021, cannot be ascertained from the record

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Olegesalie New Properties Limited v Lematasho (Environment and Land Appeal E003 of 2022) [2025] KEELC 1218 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1218/eng@2025-03-06

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