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Court of AppealDismissedMalindi Court of Appeal Civil Application (Motion) dated 20th February 2024

Green Power Generation Company Limited v Kenya Power and Lighting Company Limited & another (Civil Appeal (Application) E006 of 2024) [2025] KECA 760 (KLR)

Court of Appeal of Kenya
9 May 2025
2,042 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to strike out an appeal merely because the decree in the record was uncertified, calling it a curable procedural technicality.

What this practically means

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Executive summary

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Green Power Generation Co. Ltd, the successful plaintiff before the Environment and Land Court (Olola, J.), which on 6th May 2020 declared the 1st respondent's occupation of Lamu/Lake Kenyatta 1/3690 wrongful trespass and awarded Kshs. 10,000,000 general damages, moved the Court of Appeal at Mombasa to strike out the 1st respondent's appeal. It contended that the decree annexed to the Record of Appeal was an uncertified copy of a public document contrary to sections 2, 68, 79, 80 and 81 of the Evidence Act and the Court of Appeal Rules, rendering the appeal a nullity, and further complained of late filing and non-service on Mpeketoni Electricity Project. At the hearing the applicant abandoned all grounds except those attacking the uncertified decree, citing Ngige Ngugi vs Njenga Waweru [1979] KLR 254. The 1st respondent answered that the decree was signed, sealed and stamped by the Deputy Registrar, disclosed no variance with the judgment, and that striking out would offend Article 159(2)(d) of the Constitution. The Court, per Murgor, Laibuta and Ngenye-Macharia, JJA, held that procedural rules are handmaidens of justice; that under Rule 86 the striking-out discretion must be exercised judiciously; and that, following Peter Obwogo O vs H O, want of certification of a decree that conforms with the judgment is a mere procedural technicality. The Notice of Motion dated 20th February 2024 was dismissed with costs to the 1st respondent. The appeal itself remains pending before the Court.

Questions the Court framed

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

  1. 1.Whether the 1st respondent's Memorandum and Record of Appeal should be struck out on the ground that the decree annexed is an uncertified copy contrary to sections 2, 68, 79, 80 and 81 of the Evidence Act and the Court of Appeal Rules
  2. 2.Whether the Record of Appeal was filed out of time without leave (ground abandoned at hearing)
  3. 3.Whether Mpeketoni Electricity Project (MEP) ought to have been joined and served as a party directly affected by the appeal (ground abandoned at hearing)

Key legal issues

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01

Whether an appeal should be struck out for inclusion of an uncertified decree in the record of appeal

Holding

No. Where the decree was properly signed, sealed and dated by the Deputy Registrar, discloses no variance with the judgment, and does not handicap the appellate court, want of certification is a mere procedural technicality inconsistent with Article 159(2)(d).

Reasoning

The Court reiterated that procedural rules are handmaidens of justice and invoked Article 159(2)(d) of the Constitution requiring justice to be administered without undue regard to procedural technicalities. It adopted its earlier decision in Peter Obwogo O vs H O, noting no discrepancy between the judgment and the decree and no contention that the Court would be handicapped in determining the appeal. Counsel's reliance on Ngige Ngugi vs Njenga Waweru was not adopted; the respondent answered that it had been overtaken by the constitutional dictates of substantive justice.

p. 4
02

The scope of the discretion to strike out an appeal under Rule 86 of the Court of Appeal Rules

Holding

The Court has discretion to strike out a Notice of Appeal or an appeal where an essential step has been omitted or not taken within prescribed time, but the discretion must be exercised judiciously in each case.

Reasoning

The Court framed Rule 86 as conferring a discretion rather than mandating striking out. Read with Article 159(2)(d), the discretion is to be exercised judiciously, weighing whether the omission obstructs substantial justice. On the facts, the only surviving complaint was certification of the decree, which did not impede the efficacious determination of the appeal, so the discretion was properly withheld and the striking-out motion dismissed.

p. 3

Legal principles established

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  • The absence of certification of a copy of the decree in a record of appeal, where the decree conforms with the judgment and is properly signed and sealed, is a procedural technicality that does not warrant striking out the appeal
  • The Court's discretion under Rule 86 of the Court of Appeal Rules to strike out a Notice of Appeal or appeal must be exercised judiciously, guided by Article 159(2)(d) of the Constitution

Court orders

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  1. 1.The Notice of Motion dated 20th February 2024 is dismissed
  2. 2.Costs of the application awarded to the 1st respondent

The bench

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

majority
majority
On appeal from
Environment and Land Court
Jurisdiction invoked
Inherent application jurisdiction under rules 3 and 86 of the Court of Appeal Rules (application to strike out a record of appeal), read with sections 2, 68(2)(c), 79, 80 and 81 of the Evidence Act and Order 50 Rule 4 of the Civil Procedure Rules as invoked by the applicant

Relief refused

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Striking out of the Memorandum and entire Record of Appeal for want of a certified decree

Want of certification of the decree, which was otherwise properly signed and sealed, is a procedural technicality that does not impede determination of the appeal

p. 4

Striking out the appeal for failure to join and serve MEP, and for filing the Record of Appeal out of time

The applicant abandoned those grounds at the hearing, confining itself to grounds 1 and 10 on the uncertified decree

p. 2

Costs

The Notice of Motion was dismissed with costs to the 1st respondent.

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.

Notwithstanding that the decree was not certified as a true copy of the original, the complaint of want of certification is a procedural technicality that ought not to come in the way of determination of the substantive appeal.
p. 4Uncertified decree - procedural technicality
Article 159(2) (d) of the Constitution, prescribes that '…justice shall be administered without undue regard to procedural technicalities.'
p. 3Constitutional directive on substantive justice
Under Rule 86 of this Court's rules, the Court has discretion to strike out a Notice of Appeal or appeal where an essential step has been omitted during filing, or has not been taken within the time prescribed. This discretion should nevertheless be exercised judiciously in each case.
p. 3Rule 86 striking-out discretion
Accordingly, the Notice of Motion dated 20th February 2024 is without merit and is hereby dismissed with costs to the 1st respondent.
p. 4Final orders - dismissal of the motion

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, "Green Power Generation Company Limited v Kenya Power and Lighting Company Limited & another (Civil Appeal (Application) E006 of 2024) [2025] KECA 760 (KLR)", Case Analysis (2025). Malindi Court of Appeal Civil Application (Motion) dated 20th February 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/760/eng@2025-05-09

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