Esther Gikiri v Fatuma Ahmed Jama
The bottom line
#Kenya's Environment and Land Court dismissed a land appeal because the appellant filed an incomplete record, showing courts will not hear appeals missing key documents.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal built on an incomplete record of appeal is competent.
No - it is incompetent and defective and must be dismissed; the court has no adjudicatory mandate over it.
Order 42 Rule 13(4) prescribes the contents of a record of appeal: certified typed proceedings, judgment, decree, pleadings and documents, duly served. The Selle mandate to re-evaluate evidence presupposes a complete record. The appellant filed her record late and without the proceedings in which the parties testified and produced exhibits, precisely the material her twelve grounds required for re-evaluation, and offered no explanation. Following Bwana Mohammed Bwana, the court held the appeal incompetent and defective, leaving it no adjudicatory mandate.
When may an incomplete appeal be struck out or dismissed?
Only in the clearest of cases; an unexplained omission of proceedings going to the core of the appeal is such a case.
Citing Doris M. Wanjiru Kinuthia, the court acknowledged that compiling the record is a shared responsibility and that striking out is a remedy of last resort. But the appellant had ample time - mentions ran from September 2024 to a 15.9.2026 submissions deadline - and the record still omitted the certified proceedings. Since the omission went to the core of the appeal and was unexplained, the case fell within the clearest-of-cases category warranting dismissal.
What is the duty of a first appellate court on a first appeal?
To completely re-evaluate and re-analyse the trial evidence afresh and draw independent conclusions on law and fact, while mindful the trial court saw and heard the witnesses.
The court restated the Selle standard as the framework governing hearing of a first appeal under Section 78 of the Civil Procedure Act and Order 42. It used the standard to explain why a complete record is indispensable: without the proceedings, the mandated re-evaluation cannot be performed. The court never applied the standard to the evidence because the appeal failed on competency.
Legal principles established
#- An appeal without a record of appeal, or with the requisite documents omitted, is incompetent and defective.
- A court cannot exercise its adjudicatory powers over an incompetent appeal founded on an incomplete record.
- A first appellate court must completely re-evaluate and re-analyse the trial evidence afresh and draw its own conclusions, mindful that the trial court saw and heard the witnesses first hand.
- Striking out an appeal or suit is reserved for the clearest of cases.
Court orders
#- 1.The appeal is found incompetent and is hereby dismissed.
- 2.No order as to costs.
- On appeal from
- Magistrates' Court (trial court; exact station not stated)
- Jurisdiction invoked
- First appeal under Section 78 of the Civil Procedure Act read together with Order 42 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Gikiri v Fatuma Ahmed Jama", Case Analysis (2026). ELC Appeal E075 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6216/eng@2026-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.