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ELCDismissedELC Land Appeal No. E019 of 2023· [2026] KEELC 6271 (KLR)

Salome Nduta Maara v George J. Maara

Environment and Land Court
7 October 2026
JOJ. M. Onyango
1,976 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 refused to strike out a land appeal over missing documents, ruling the gap could be fixed by filing a supplementary record.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika (J. M. Onyango, J) determines the Respondent's Notice of Motion dated 11th September 2025 seeking to strike out the Appellant's Memorandum of Appeal dated 14th August 2023 and Record of Appeal dated 6th May 2024 in an appeal against a trial court ruling on a preliminary objection. The Respondent argued that the Record omitted the Defendant's Supporting Affidavit of 14th December 2022 (with annexures including pleadings in Limuru CMCC No. 281 of 2020) and a further affidavit of 27th January 2023, both relied on by the trial court, offending Order 42 Rule 13(4)(e). The Appellant conceded inadvertent omission of one affidavit, maintained the core documents were on record, and argued the application was an afterthought contrary to Article 159(2)(d), noting the Respondent took directions twice without complaint. The court framed a single issue: whether the Record was incomplete and, if so, whether the omission was fatal. It held the Record incomplete - the omitted affidavits were documents put in evidence before the magistrate - but not incurably so, since only the memorandum of appeal, pleadings and the order appealed from are indispensable. Distinguishing Bwana Mohamed Bwana and applying Kipkoech v Cheruiyot and the Doris M. Wanjiru Kinuthia approach, the court held striking out to be a draconian remedy unwarranted absent incurable defect or unremediable prejudice, and noted the Respondent's late objection. The application was dismissed with leave granted to file a Further Supplementary Record of Appeal within fourteen days, and each party bearing its own costs.

Key legal issues

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01

Whether omission of affidavits from the Record of Appeal renders the appeal incompetent

Holding

The omission renders the record incomplete but not fatally defective; the appeal is not struck out and leave is granted to file a further supplementary record

Reasoning

Order 42 Rule 13(4) lists required documents, but the proviso allows the judge to dispense with any document not relevant except paragraphs (a), (b) and (f). The omitted affidavits fall under paragraph (e). The core documents are on record, the omissions can be readily supplied, and no prejudice was shown. Article 159(2)(d) is satisfied by requiring compliance now rather than shutting the litigant out.

p. 8
02

Whether the Respondent's delay in raising the complaint weighs against striking out

Holding

Although no rule bars the Respondent from raising the point, the timing weighs against the drastic remedy of striking out

Reasoning

The Respondent was served with the Record and Supplementary Record in 2024, took directions on 23rd January 2025 and 29th May 2025 without complaint, and filed appeal submissions on 15th September 2025, the same week the striking-out application was lodged. The Appellant bears primary responsibility for the incomplete record, but the Respondent's silence and late objection weigh against striking out.

p. 7

Legal principles established

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  • Only the memorandum of appeal, the pleadings and the judgment/order/decree appealed from are indispensable in a record of appeal; omissions of other documents are curable
  • An omitted document may render a record of appeal defective without rendering it incurably defective
  • Striking out an appeal is a draconian remedy reserved for defects that cannot be cured without injustice

Court orders

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  1. 1.The Respondent's Notice of Motion dated 11th September 2025 is dismissed
  2. 2.The Appellant is granted leave to file and serve, within fourteen (14) days, a Further Supplementary Record of Appeal containing the Respondent's Supporting Affidavit sworn on 14th December 2022 with all annexures, the affidavit filed in response on 27th January 2023, and any other affidavit or document filed pursuant to the leave granted on 7th December 2022
  3. 3.Upon service, the Respondent may file supplementary submissions limited to the documents in order (b) within fourteen (14) days; the Appellant may file further submissions within seven (7) days of service
  4. 4.In default of compliance with order (b), the Respondent may move the Court appropriately
  5. 5.Each party shall bear its own costs of the application
On appeal from
Trial court (Limuru ELC Case No. E020 of 2022)
Limuru ELC Case No. E020 of 2022
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court under Order 42 Rule 13 and Order 51 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure 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, "Salome Nduta Maara v George J. Maara", Case Analysis (2026). ELC Land Appeal No. E019 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6271/eng@2026-10-07

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