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ELCStruck OutGithongo ELC Appeal arising from SPMC E & L Case No. E002 of 2021· [2025] KEELC 6885 (KLR)

Cosmas Mbae v [Respondent] (Appeal from Githongo SPMC E & L Case No. E002 of 2021)

Environment and Land Court
7 October 2025
BEB M Eboso
3,020 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 never stated what relief he wanted, so even winning arguments could not have helped him.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Meru (B M Eboso, ELC Judge) against the judgment of the Senior Principal Magistrate's Court at Githongo (Hon. T. A. Sitati) delivered on 31/5/2024 in Githongo SPMC E & L Case No. E002 of 2021. The respondent had sued the appellant for permanent injunction, eviction, general damages for trespass and mesne profits over parcels Kiamuri 'A'/3121 and 3122, and succeeded; the trial court entered judgment in his favour including damages of Kshs 150,000 and mesne profits of Kshs 50,000 per annum from 15/7/2020. The appellant, who claimed he bought the land in 2002 and had acquired title by adverse possession, and who alleged fraudulent subdivision and registration, lodged a five-ground appeal. Before addressing the merits, the court considered the respondent's argument that the memorandum of appeal bore no prayers. Holding that a memorandum of appeal is a pleading whose essential elements are clarity and specificity, and that a court cannot grant relief not sought nor determine unpleaded issues, the court found the absence of any relief rendered the appeal fatally defective and incompetent. The appeal was struck out in limine without re-evaluation of the trial evidence, and costs of the appeal were awarded to the respondent pursuant to Section 27 of the Civil Procedure Act. Judgment dated, signed and delivered at Meru on 7th October 2025.

Key legal issues

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01

Whether failure to plead relief in the memorandum of appeal is fatal

Holding

Yes - the memorandum of appeal is a pleading and the absence of prayers makes the appeal fatally defective and incompetent, liable to be struck out in limine.

Reasoning

A pleading must be clear and specific and must give the opposing party notice of the claim and relief sought. A memorandum of appeal without prayers deprives the respondent of notice of the case it faces, and the court cannot grant relief not sought nor determine issues not pleaded. Determining substantive issues would be an exercise in futility, so the appeal is struck out without re-evaluating evidence.

p. 6

Legal principles established

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  • A memorandum of appeal is a pleading; failure to plead any relief in it renders the appeal fatally defective and incompetent.
  • A court cannot grant a remedy which has not been applied for nor determine issues the parties have not pleaded.

Court orders

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  1. 1.The appeal is struck out in limine without considering the substantive issues or re-evaluating the evidence
  2. 2.The appellant shall bear costs of the appeal
On appeal from
Senior Principal Magistrate's Court at Githongo
Githongo SPMC E & L Case No. E002 of 2021
Jurisdiction invoked
First appellate jurisdiction of the Environment and Land Court over appeals from the Senior Principal Magistrate's Court (Environment and Land)

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, "Cosmas Mbae v [Respondent] (Appeal from Githongo SPMC E & L Case No. E002 of 2021)", Case Analysis (2025). Githongo ELC Appeal arising from SPMC E & L Case No. E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6885/eng@2025-10-07

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