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ELRCStruck OutE002 of 2021· [2023] KEELRC 1675 (KLR)

Prime Steel Company Limited v Rop & another (Appeal E002 of 2021) [2023] KEELRC 1675 (KLR)

Environment and Land Court / High Court of Kenya at Kisumu
13 July 2023
CBC. N. Baari
1,590 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An appeal was struck out in Kisumu because the appellant left out the actual court order being appealed, proving court records must be complete.

What this practically means

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Executive summary

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This was an appeal against the ruling of Hon. Purity Kosgei, Resident Magistrate, Tamu, delivered on December 17, 2020, dismissing the Appellant's application dated October 19, 2020 seeking review/setting aside of a judgment and decree rendered on September 10, 2020 in Tamu PMCC No 51 of 2017. The Appellant's grounds alleged that the trial magistrate misdirected herself on law and fact in dismissing the review application, and in failing to follow superior court decisions on the forum for determining work injury claims under the Work Injury Benefits Act, particularly the Court of Appeal's decision in Attorney General v Law Society of Kenya. The parties canvassed the appeal by written submissions. The Respondents objected that the Record of Appeal omitted the order and ruling appealed against, rendering the appeal fatally defective. The court found that the record contained a judgment of September 10, 2020 by Hon. P.K Rugut, not the ruling of December 17, 2020 under appeal, and that neither the review application nor its ruling was in the record. Relying on Chege v Suleiman and Lucas Otieno Masaye v Olewe Kidi, the court held that failure to include the order appealed against is a jurisdictional point rendering the appeal fatal. The appeal was struck out with costs to the Respondents. The merits of the jurisdictional dispute under WIBA were therefore never determined.

Key legal issues

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01

Whether an appeal can proceed where the order appealed against is omitted from the record of appeal

Holding

The omission is a jurisdictional point rendering the appeal fatal and for striking out

Reasoning

The court found the record of appeal contained a judgment of September 10, 2020 by Hon. P.K Rugut rather than the ruling of Hon. Purity of December 17, 2020 which was the basis of the appeal. Neither the review application nor the ruling formed part of the record. Since an appeal lies only against a decree or order formally extracted, the omission divests the appellate court of jurisdiction to consider the controversies in the appeal, and the appeal must be struck out.

p. 3

Legal principles established

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  • Omission of the order or decree appealed against from the record of appeal is a jurisdictional defect that renders the appeal fatally defective and liable to be struck out

Court orders

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  1. 1.The appeal is struck out with costs to the Respondents

Authorities

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Legislation

  • Work Injury Benefits Act (WIBA)Section 16; Section 58(2)
  • Civil Procedure Rules, 2010Order 42, Rule 13(4); Order 42, Rule 13(4)(f)
  • Civil Procedure ActSection 66

Cases cited (5)

  • Attorney General v Law Society of Kenya & Another
    [2017] eKLR, Nairobi Civil Appeal No 133 of 2011
  • Elvis Anyimbo Sichenga v ODM & Others
    [2016] eKLR, Kakamega Election Petition Appeal No 3 of 2018
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Lucas Otieno Masaye v Olewe Kidi
    [2022] eKLR
  • Chege v Suleiman
    [1988] eKLR
On appeal from
Resident Magistrate's Court, Tamu
Tamu PMCC No 51 of 2017
Jurisdiction invoked
Appeal under the Civil Procedure Act from the decree/orders of the Resident Magistrate's Court (section 66 of the Civil Procedure Act referenced via Chege v Suleiman)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Prime Steel Company Limited v Rop & another (Appeal E002 of 2021) [2023] KEELRC 1675 (KLR)", Case Analysis (2023). E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1675/eng@2023-07-13

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