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Court of AppealStruck OutCivil Appeal 354 of 2002

Rael Muyaka & 6 others v Waitaluk Land Disputes Tribunal Comprising of Mboto Kidai & 2 others [2006] KECA 97 (KLR)

Court of Appeal of Kenya
13 October 2006
ROR. S. C. OmoloJOJ. W. Onyango OtienoWDW. S. Deverell
348 words in judgment
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The bottom line

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The Court of Appeal struck out an appeal because the appellants left the notice of motion out of their record of appeal, ending the case without deciding the land dispute.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Eldoret from the ruling of Etyang J in the High Court at Kitale (Miscellaneous Civil Application No. 102 of 2001) delivered on 18 December 2001, which had dismissed the appellants' Amended Notice of Motion. The appeal was argued on 20 September 2006 and judgment was reserved. However, while preparing its judgment, the Court of Appeal noted that the Amended Notice of Motion which the superior court had considered and upon which the ruling was based had not been included in the record of appeal, as required by Rule 85(1) of the Court of Appeal Rules. The court held that the notice of motion was a primary document that had to form part of the record, and that in its absence there was in law no valid appeal upon which judgment could be given. The omission was held to be fatal to the entire appeal, which was struck out. The court made no orders as to costs. The appeal therefore ended without any determination of the merits of the underlying land dispute or of the High Court's ruling, which was neither affirmed nor reversed. The judgment binds lower courts as to the mandatory nature of including primary documents, such as the notice of motion under appeal, in the record of appeal, and confirms that omission of such a document is a fatal defect warranting striking out of the appeal.

Key legal issues

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01

Whether an appeal can proceed where the notice of motion considered by the superior court is omitted from the record of appeal

Holding

The omission of the amended Notice of Motion, a primary document, meant there was no valid appeal before the court and the appeal had to be struck out

Reasoning

The court perused the record of appeal and found that the Amended Notice of Motion which was considered by the superior court and upon which the Ruling was based was not included, contrary to Rule 85(1) of the Court of Appeal Rules. Because that document was primary and its absence prevented the court from adjudicating, the defect was fatal and the appeal was struck out rather than decided on its merits.

p. 2

Legal principles established

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  • A primary document such as the notice of motion under appeal must be included in the record of appeal as required by Rule 85(1) of the Court of Appeal Rules; its omission is fatal to the entire appeal

Court orders

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  1. 1.The appeal stands struck out
  2. 2.No orders as to costs (each party to bear their own costs)

The bench

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

RO
majority

Wrote the judgment

JO
majority

Wrote the judgment

WD
majority

Wrote the judgment

On appeal from
High Court of Kenya at Kitale
Miscellaneous Civil Application No. 102 of 2001
Jurisdiction invoked
Appeal to the Court of Appeal under the Court of Appeal Rules; the court found no valid appeal properly before it under Rule 85(1)

Relief refused

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Substantive determination of the appeal

The Amended Notice of Motion, a primary document, was omitted from the record of appeal, leaving no valid appeal before the court

p. 2

Costs

We make no orders as to the costs.

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 amended Notice of Motion is a primary document and had to be included as part of the record of appeal.
p. 2Contents of record of appeal – Rule 85(1)
This appeal stands struck out. We make no orders as to the costs.
p. 2Final orders – striking out and costs

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, "Rael Muyaka & 6 others v Waitaluk Land Disputes Tribunal Comprising of Mboto Kidai & 2 others [2006] KECA 97 (KLR)", Case Analysis (2006). Civil Appeal 354 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/97/eng@2006-10-13

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