Bakari v Kioko & another (Environment and Land Appeal E012 of 2021) [2025] KEELC 620 (KLR)
The bottom line
#A Kenyan land appeal survived being struck out only because the judge gave a 14-day deadline to fix the missing decree.
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 appeal is incompetent (record of appeal lacking a decree)
- 2.Having concluded there was no cause of action against the appellant what consequential orders should have ensued?
- 3.Whether the doctrine of audi alteram partem was contravened
- 4.Whether the impugned judgment decided on matters not pleaded by the parties
- 5.What orders should this court issue including an order as to costs?
Key legal issues
#Whether an appeal lacking a decree is incompetent
Yes. The decree is a jurisdictional prerequisite for an appeal to the ELC; the record of appeal without it is incompetent and fatally defective.
The court read Section 16A(1) of the ELC Act, Sections 65(1) and 79G of the Civil Procedure Act and Orders 42 Rules 1(2), 2 and 13(4) of the Civil Procedure Rules conjunctively. The decree anchors computation of time and the grounds of appeal. Guided by the Supreme Court decision in Bwana Mohamed Bwana, an incompetent appeal divests the court of jurisdiction, although the court declined to adopt the draconian route of outright striking out, applying the overriding objective and granting leave to regularise.
Whether striking out is the appropriate remedy for a defective record
The court struck out the record of appeal but allowed the appellant 14 days to file a complete record, failing which the appeal would stand dismissed.
Drawing on Loopa v Technoplast Ltd and the overriding objectives under Sections 1A and 1B of the Civil Procedure Act, the court held that striking out an appeal for want of a decree is draconian and should yield to the wider interests of substantial justice. It therefore tailored a conditional order rather than dismissing the appeal outright.
Legal principles established
#- The absence of a decree from the record of appeal is a jurisdictional issue that renders the appeal incompetent
- A decree is the backbone of an appeal: it is the date from which time is computed, the basis upon which an appeal lies, and the crux from which grounds of appeal are derived
Court orders
#- 1.The record of appeal is struck out with costs to the 1st respondent of ksh.20,000/=
- 2.The appellant shall file a complete record of appeal and pay the 1st respondent's costs within 14 days hereof and in default, the entire appeal shall stand dismissed with costs to the 1st respondent
- 3.Mention for further directions on 8/04/2025
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court (trial court)
- Not stated
- Jurisdiction invoked
- Section 16A(1) of the Environment and Land Court Act; Section 65(1) and 79G of the Civil Procedure Act – first appeal from a subordinate court
Relief refused
#The appellant's prayer that the appeal be allowed and the impugned judgment set aside
The record of appeal lacked a decree, which the court held to be a jurisdictional defect rendering the appeal incompetent
Costs
Costs of kshs. 20,000/= awarded to the 1st respondent; appellant to file a complete record of appeal and pay the 1st respondent's costs within 14 days, failing which the entire appeal shall stand dismissed with costs to the 1st 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.
That the record of appeal is hereby struck out with costs to the 1st respondent of ksh.20,000/=.
That the appellant shall file a complete record of appeal and pay the 1st respondent's costs within 14 days hereof and in default, the entire appeal shall stand dismissed with costs to the 1st respondent.
Without a record of appeal a 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.
In my humble view, the absence of this crucial document from the record of appeal is a jurisdictional issue.
Issues in the judgment
#The judgment repeatedly numbers separate paragraphs with the same number '27', and paragraph 30 follows a run of three paragraphs all numbered 27, indicating pagination/numbering errors in the text
The judgment states it was scheduled for judgment but a ruling was rendered instead, creating a mismatch in the character of the decision
The trial court's final order (d) on specific performance is internally inconsistent: it directs transfer of the suit property to the 2nd respondent rather than to the 1st respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakari v Kioko & another (Environment and Land Appeal E012 of 2021) [2025] KEELC 620 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/620/eng@2025-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.