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ELCStruck OutAppeal from Bungoma CM-ELC Case No. 86 of 2018· [2025] KEELC 5667 (KLR)

Wakapata v Barasa & another (Environment and Land Appeal 13 of 2020) [2025] KEELC 5667 (KLR)

Environment and Land Court
24 July 2025
ECE. C. Cherono
2,783 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a land appeal because the appellant forgot to include his requested orders (prayers) in the appeal documents.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Bungoma against the judgment of Hon. S.O Mogute in Bungoma CM-ELC Case No. 86 of 2018, where the Respondents' claim for eviction of the Appellant from land parcel Bokoli/Mukuyuni/448 and a permanent injunction had been allowed, and the Appellant's counter-claim for cancellation of the Respondents' title dismissed with costs. The Respondents claimed to have bought the land at a public auction in the 1980s; the Appellant, son of the original owner Dominiko Wakapata, alleged the title was fraudulently acquired. The Appellant filed an Amended Memorandum of Appeal raising nine grounds, including limitation under Section 7 of the Limitation of Actions Act, non-compliance with Section 3(3) of the Law of Contract Act, failure to determine fraud, locus standi, and burden of proof. He filed written submissions but the Respondents filed none. However, the Appellant set out no prayers in his memorandum of appeal, and the prayers surfaced only in submissions. Relying on the pleadings principle from Malawi Railways Ltd v Nyasulu, Migore, and Mwavula v Waweru, Cherono J held that a party is bound by pleadings, that submissions are neither pleading nor evidence, and that Article 159(2) of the Constitution cannot cure incomplete procedure. The court struck out the Amended Memorandum of Appeal as defective, with costs to the Respondents. The appeal therefore did not reach the merits of the grounds raised.

Key legal issues

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01

Whether an appeal with no prayers in the memorandum of appeal can be sustained

Holding

The Amended Memorandum of Appeal was defective for want of prayers and was struck out with costs to the Respondents

Reasoning

The court held that parties are bound by their pleadings and courts cannot adjudicate on matters not raised by them. Prayers appearing only in submissions are of no avail since submissions are neither pleadings nor evidence, and Article 159(2) of the Constitution cannot cure incomplete procedure. A decision on a claim or defence not made by a party is equivalent to not hearing that party.

p. 6

Legal principles established

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  • A party is bound by their pleadings and a court cannot grant relief not prayed for, even where prayers appear in submissions
  • Submissions are neither pleading nor evidence

Court orders

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  1. 1.The Amended memorandum of appeal dated 04/10/2024 is defective and is struck out with costs to the Respondents

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Law of Contract ActSection 3(3)
  • Civil Procedure Rules 2010Order 42 Rule 3
  • Constitution of KenyaArticle 159(2)

Cases cited (10)

  • Kenya Hotels Limited v Oriental Commercial Bank Limited
    [2018] eKLR
  • Uhuru Highway Development Ltd vs Central Bank of Kenya
    (2002) 1 EA 314
  • Virginia Kairigo Runji v Christopher Nthia Gacuthe & 17 others
    [2020] eKLR
  • Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another
    [2004] KECA 65 (KLR)
  • Matemu vs Trusted Society of Human Rights & 5 others
  • Mbogo and Another vs. Shah
    [1968] EA 93
  • Daniel Otieno Migore v South Nyanza Sugar Co. Ltd
    [2018] eKLR
  • Malawi Railways Ltd vs Nyasulu
    [1998] MWSC 3
  • Mwavula v Waweru t/a Antique Auctioneers Agencies & another
    (Civil Appeal E374 of 2023) [2024] KEHC 5988 (KLR)
  • Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another
    [2014] eKLR
On appeal from
Chief Magistrate's Court at Bungoma (CM-ELC)
CM-ELC Case No. 86 of 2018
Jurisdiction invoked
First appeal from the magistrates' court in environment and land matters pursuant to Article 162(2)(b) of the Constitution and the Environment and Land Court Act

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, "Wakapata v Barasa & another (Environment and Land Appeal 13 of 2020) [2025] KEELC 5667 (KLR)", Case Analysis (2025). Appeal from Bungoma CM-ELC Case No. 86 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5667/eng@2025-07-24

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