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ELCOtherKajiado Environment and Land Court Appeal (Memorandum of Appeal dated 28th January, 2025)

Tenkeya v Oenga (Environment and Land Appeal E006 of 2025) [2026] KEELC 1819 (KLR)

Environment and Land Court
24 March 2026
780 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court gave a landlord one more chance to fix an incomplete appeal file instead of dismissing it, putting fair outcomes above technical mistakes.

What this practically means

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Executive summary

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The appellant appealed against a ruling of Hon. Kagoni E.M (SPM) delivered on 10th December 2024 in Kajiado Chief Magistrate's Court case CMCC No. E042 of 2020, in which the learned Magistrate found the appellant liable for sentencing for contempt of court orders and directed her to appear for sentencing on 21st January 2025. The memorandum of appeal dated 28th January 2025 sought to have the ruling set aside on the ground that the trial magistrate lacked jurisdiction ab initio, the dispute being a controlled tenancy under section 2 of the Landlord and Tenants (Shops, Hotels and Catering Establishments) Act, Cap 301, which should have gone to the Business Premises and Rent Tribunal; the appellant also contended the tenancy had lapsed on expiry of the lease on 30th June 2023, with the tenant removed on 2nd July 2023. Before hearing the appeal, the court examined the record of appeal filed on 5th August 2025 and found it incomplete, containing only the typed proceedings of the trial court. Applying Order 42 of the Civil Procedure Rules, Direction 14 of the Environment and Land Court Practice Directions of 21st March 2025, and the Supreme Court decision in Bwana -vs- Bonaya & 2 others [2015] KESC 8 (KLR), the court held that an incomplete record renders an appeal incompetent and defective, divesting the court of jurisdiction. However, treating the deficiency as curable under Article 159(2)(d) of the Constitution, the court allowed the appellant a second chance to file a complete record of appeal and temporarily arrested the scheduled judgment pending compliance. No costs order was made.

Questions the Court framed

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

  1. 1.Whether the record of appeal as filed is complete and sufficient for the determination of the appeal
  2. 2.Whether an incomplete record of appeal renders the appeal incompetent and defective
  3. 3.Whether the deficiency in the record of appeal is curable in the interest of substantive justice

Key legal issues

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01

Sufficiency of the record of appeal

Holding

The record of appeal as filed was incomplete, containing only the typed proceedings, and was therefore insufficient for deciding the appeal

Reasoning

The court verified from the CTS record that the record of appeal was filed on 5th August 2025 but found it contained only the typed proceedings of the trial court. Order 42 of the Civil Procedure Rules and Direction 14 of the 2025 Practice Directions prescribe the required contents of a record of appeal, including pleadings, certified proceedings, the judgment or ruling appealed against, and the decree or order. The absence of these items meant the court could not render a decision.

p. 2
02

Effect of an incomplete record on competence of the appeal

Holding

An incomplete record renders the appeal incompetent and defective, divesting the court of jurisdiction over the controversy

Reasoning

Relying on the Supreme Court decision in Bwana -vs- Bonaya & 2 others [2015] KESC 8 (KLR), the court held that without a record of appeal a court cannot determine the appeal; an omitted bundle of documents makes the appeal incompetent and defective, and an incompetent appeal divests the court of jurisdiction to consider the factual or legal controversies embodied in the issues.

p. 2
03

Curability of the defect under Article 159(2)(d)

Holding

The deficiency is curable and the appellant was granted a second chance to file a complete record of appeal

Reasoning

Invoking the constitutional directive to administer justice without undue regard to procedural technicalities, the court chose not to strike out the appeal outright. It instead allowed the appellant time to file a complete record in line with the Practice Directions and arrested the scheduled judgment pending compliance, prioritizing substantive justice over procedural default.

p. 2

Legal principles established

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  • An appeal founded on an incomplete record of appeal is incompetent and defective, divesting the court of jurisdiction to determine it
  • A curable deficiency in the record of appeal may be excused under Article 159(2)(d) of the Constitution to allow determination on the merits

Court orders

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  1. 1.The Appellant is allowed to file a complete record of appeal as outlined in the Practice Directions on Standardization of Practice and Procedures in the Environment and Land Court, 2025
  2. 2.Delivery of the judgment scheduled for 24th March 2026 is temporarily arrested pending compliance with the directions

The bench

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

majority

Wrote the judgment

On appeal from
Kajiado Chief Magistrate's Court
CMCC No. E042 of 2020
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over subordinate courts (appeal against ruling of the Chief Magistrate's Court)

Relief refused

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Determination of the appeal on the merits as filed

The record of appeal is incomplete, containing only the typed proceedings, rendering the appeal incompetent and defective

p. 2

Costs

No costs order made

Quotable passages

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

The lack of a complete record of appeal renders the appeal incompetent and defective.
p. 2competence of appeal
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. 2record of appeal requirements (Supreme Court authority)
The deficiency in the record of appeal is however curable. To enable a determination on the merits, this court in compliance with the dictates of Article 159(2)(d) of the Constitution; to administer justice without undue regard to procedural technicalities, will rise to its higher calling to do justice by allowing the Appellant a second chance to put her house in order and forthwith file a complete record of appeal as outlined in the Practice Directions on Standardization of Practice and Procedures in the Environment and Land Court, 2025.
p. 2procedural technicalities and curability
Consequently, the judgment scheduled for delivery today will be temporarily arrested, awaiting compliance with the above directions.
p. 3final orders - arrest of judgment

Issues in the judgment

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minor

The judgment never states the case number or title of the appeal before the ELC; only the trial case number (CMCC No. E042 of 2020) and the date of the memorandum of appeal are given, leaving the appellate case number unidentified.

minor

Judgment is dated 24th March 2026 while counsel is recorded as having appeared on a mention of 12th November 2025 and the record of appeal was filed 5th August 2025; the judgment itself says it 'will be temporarily arrested' although it purports to be the judgment being delivered.

minor

Typographical error in the judgment: 'trial ccourt'.

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, "Tenkeya v Oenga (Environment and Land Appeal E006 of 2025) [2026] KEELC 1819 (KLR)", Case Analysis (2026). Kajiado Environment and Land Court Appeal (Memorandum of Appeal dated 28th January, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1819/eng@2026-03-24

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