Olegesalie New Properties Limited v Lematasho (Environment and Land Appeal E003 of 2022) [2025] KEELC 1218 (KLR)
The bottom line
#A Kenyan court refused to strike out an incomplete land appeal, letting the appellant fix the missing documents within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Completeness of the record of appeal under Order 42 Rule 13(4) of the Civil Procedure Rules, 2010
The record of appeal was incomplete and the certificate of record affirming its correctness was incorrect
The court enumerated eight categories of missing or incomplete documents, including applications, a preliminary objection, witness statements, pleadings and submissions, all of which were referenced in the trial proceedings or the trial court's judgment. Counsel's certificate of record affirming the correctness of the record was therefore demonstrably wrong. Order 42 Rule 13(4) prescribes the mandatory contents of a record of appeal.
Competence of an appeal founded on an incomplete record
The appeal is incompetent and subject to striking out, following the Supreme Court's guidance in Bwana v Bonaya
Relying on the Supreme Court's decision, the court held that a court cannot determine an appeal without a record of appeal, and that omission of the requisite bundle of documents renders the appeal incompetent and divests the court of jurisdiction over the factual and legal controversies it embodies. The appeal before the court was therefore strictly speaking incompetent and subject to striking out.
Whether the court should exercise its discretion to save the appeal despite the technical deficiency
The court invoked Article 159(2)(d) and Section 18(c) of the Environment and Land Court Act to save the appeal and allow a supplementary record
Guided by Article 159(2)(d) of the Constitution and restated in Section 18(c) of the Environment and Land Court Act, and adopting the Supreme Court's pronouncement in Kidero v Waititu on managerial judging and rejection of mechanical resort to procedural technicalities, the court rose to 'its higher calling to do justice', vacated the judgment date and allowed the Appellant to file a supplementary record of appeal containing all missing documents.
Legal principles established
#- Without a complete record of appeal, an appeal is incompetent and defective, and a court cannot exercise its adjudicatory powers over it
- Courts should not mechanically strike out an appeal for procedural technicality where justice can be done by allowing the defect to be remedied, per Article 159(2)(d) of the Constitution
Court orders
#- 1.The directions on delivery of judgment are vacated
- 2.The matter to be mentioned in 30 days, within which time the Appellant must file a supplementary record of appeal containing all the missing documents outlined
- 3.The Appellant is directed to ensure that the documents are filed in a chronological manner
- On appeal from
- Magistrates' court (trial court, name not stated in the judgment)
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution and Section 18(c) of the Environment and Land Court Act (the court sits on first appeal from the trial court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olegesalie New Properties Limited v Lematasho (Environment and Land Appeal E003 of 2022) [2025] KEELC 1218 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1218/eng@2025-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.