Tallam v Rotich (Suing as the Administrator of the Estate of David Rotich – Deceased) & 2 others (Environment and Land Appeal E044 of 2022) [2025] KEELC 373 (KLR)
The bottom line
#A Kenyan land appeal failed because the lawyer omitted a key court order from the appeal documents, so the original dismissal of the case stands.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the failure to include the order appealed from in the Record of Appeal renders the appeal incompetent
- 2.Whether the order dismissing the suit should be set aside
Key legal issues
#Whether absence of the order appealed from renders the appeal incompetent
Yes. The order appealed from is one of the mandatory documents under Order 42 Rule 13(4)(f) which cannot be dispensed with; its omission renders the appeal incompetent and divests the court of jurisdiction
The proviso to Order 42 Rule 13(4) permits dispensing with documents other than those in paragraphs (a), (b) and (f), which include the judgment, order or decree appealed from. The court perused the Record of Appeal and found the order of 9.11.22 and the proceedings of that date were absent. Relying on Bwana Mohamed Bwana and Chege v Suleiman, the court held that an appeal can only lie against a decree or order formally extracted, and the omission is a jurisdictional, not merely procedural, defect.
Whether the order dismissing the suit should be set aside
No. The Appellant did not demonstrate sufficient cause to warrant setting aside the dismissal; his explanation of his absence when the case was called out did not add up, and the case had previously been dismissed for want of prosecution
Although the court has discretion to set aside an order of dismissal, that discretion must be exercised judiciously and the applicant must show sufficient cause. The record showed prior dismissal for want of prosecution and the Appellant's absence when his name was called out on 9.11.22. The court found the explanation inadvertence unconvincing and declined to interfere with the trial magistrate's exercise of discretion.
Legal principles established
#- Failure to attach the decree or order appealed from in the Record of Appeal renders an appeal incompetent, as documents in paragraphs (a), (b) and (f) of Order 42 Rule 13(4) cannot be dispensed with
- An incompetent appeal divests a court of jurisdiction to determine the controversies embodied in it
- The discretion to set aside an order of dismissal must be exercised judiciously upon consideration of all the facts and circumstances prevailing at the time of the dismissal
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Eldoret
- Eldoret CMELC Case No. 82 of 2019
- Jurisdiction invoked
- First appellate jurisdiction under Section 65 of the Civil Procedure Act read with Order 42 of the Civil Procedure Rules (appeal from orders of the Chief Magistrate's Court)
Relief refused
#Setting aside the trial court's order of 9.11.2022 dismissing the Appellant's suit for want of prosecution
The appeal was incompetent for failure to include the order appealed from in the Record of Appeal, and in any event no sufficient cause was demonstrated to interfere with the trial court's discretion
Costs
Costs of the appeal to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As can be gleaned from the proviso to rule 13 (4) (f) above, the documents mentioned in paragraphs (a), (b) and (f) must be included in the Record of Appeal and they cannot be dispensed with.
Without a record of appeal the court cannot determine the appeal cause before it. Thus if the requisite bundle of documents is omitted, the appeal is incompetent and defective for failing the requirements of the law.
The upshot is that the appeal lacks merit and it is hereby dismissed with costs to the Respondent.
Issues in the judgment
#The Memorandum of Appeal is said to seek setting aside of orders made on 9.11.2022 in Eldoret CM ELC Case No. 82 of 2022, whereas the suit throughout is No. 82 of 2019 - an apparent typographical inconsistency in the case number
Grounds of appeal refer to dismissal for non-attendance while the court records state the Appellant was present in court, yet the court later found the Appellant absent when the case was called out - a tension in the judgment's own account
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tallam v Rotich (Suing as the Administrator of the Estate of David Rotich – Deceased) & 2 others (Environment and Land Appeal E044 of 2022) [2025] KEELC 373 (KLR)", Case Analysis (2025). Eldoret CMELC Appeal from Eldoret CM ELC Case No. 82 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/373/eng@2025-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.