Onyango v Oloo & 3 others (Environment and Land Appeal E025 of 2024) [2025] KEELC 7110 (KLR)
The bottom line
#A Kenyan court refused to strike out an incomplete appeal, ruling that missing documents can be added later through a supplementary record of appeal.
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 application to strike out the Memorandum of Appeal dated 5/8/2024 and Record of Appeal dated 3/12/2024 for incompleteness is merited
- 2.Whether the absence of the replying affidavit sworn by Franklin Swaga Oloo and other documents from the Record of Appeal is fatal to the appeal
Key legal issues
#Whether omission of the replying affidavit of Franklin Swaga Oloo renders the Record of Appeal fatally defective
No - the affidavit is not a mandatory document under Rule 13(4); it falls under Rule 13(4)(e) and its omission can be cured by a supplementary record
The court held that affidavits are listed separately under Rule 13(4)(e) and do not rank with the pleadings, judgment and order or decree appealed from, which alone are mandatory. The affidavit was introduced in evidence at trial on 9/04/2024 and therefore fits the description under Rule 13(4)(e), but its inclusion can be secured through a supplementary record rather than striking out the appeal.
Whether a further affidavit may properly annex documents omitted from the supporting affidavit
Yes - a further affidavit may attach documents that are available and not completely new
The appellant argued the supporting affidavit was fatally deficient for failure to annex the record of appeal and the replying affidavit. The court rejected this, holding that a supplementary or further affidavit allows a further reply including attachment of such documents, which are accessible and not new, and the applicant annexed them in the further affidavit.
What remedy applies where a record of appeal is incomplete
A supplementary record of appeal rather than striking out, since the court has discretion and the appeal had not yet been certified ready for hearing
The court distinguished the Supreme Court decision in Bwana Mohamed Bwana where mandatory documents were missing, and relied on Hamida Yaroi Shek Nuri, holding that the lower-risk course is to allow the record to be completed. The responsibility for the record lies with the appellant under the Civil Procedure Rules, not the respondent via a supplementary record.
Whether Rule 94(1) of the Court of Appeal Rules obliges a respondent to file a supplementary record
No - those rules apply to the Court of Appeal; in the ELC the responsibility for the record of appeal lies with the appellant under the Civil Procedure Rules
The respondent had relied on Rule 94(1) of the Court of Appeal Rules to argue the applicants should have filed a supplementary record. The court declined to be persuaded, noting those rules govern appeals to the Court of Appeal under the Appellate Jurisdiction Act, whereas first-instance appellate practice in the ELC is governed by the Civil Procedure Rules, which place responsibility on the appellant.
Whether admissibility of the replying affidavit at trial is a matter for this application
No - its admissibility at the point of trial is not a matter for consideration at this stage unless it is a ground of appeal
The applicant argued the affidavit was admitted unprocedurally without leave. The court held the striking-out application is not the forum for such arguments; admissibility objections should have been raised on 9/04/2024 at trial or as a ground of appeal, not in an application to strike out the record.
Legal principles established
#- Under Order 42 Rule 13(4) only the memorandum of appeal, the pleadings and the judgment, order or decree appealed from are mandatory and cannot be dispensed with; all other documents are subject to the court's discretion
- An affidavit put in evidence before the trial magistrate falls under Rule 13(4)(e) but is not a pleading and does not rank in priority with the mandatory documents
- Failure to include a document in a Record of Appeal does not automatically render the appeal fatal; the omission may be cured by a supplementary record of appeal
- The power to exclude a document from the record of appeal belongs to the court, not to counsel
Court orders
#- 1.Appellant is hereby granted leave to file a supplementary record of appeal
- 2.The Supplementary record of appeal shall include the affidavit sworn by Franklin Swaga Oloo on 22nd May, 2018 together with the documents annexed thereto
- 3.Parties shall appear before the Deputy Registrar Environment & Land Court Siaya on priority basis to enable identification of any further documents as shall be identified by the applicant for inclusion in the supplementary record of appeal
- 4.The supplementary record of appeal shall be filed within 7 days
- 5.The costs of this application shall be borne by the appellant
- 6.The matter is hereby fixed before the Deputy Registrar Environment & Land Court Siaya on 29th October 2025
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 13 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act
Relief refused
#Striking out of the Memorandum of Appeal dated 5/8/2024
The missing documents were not mandatory under Order 42 Rule 13(4); only the memorandum of appeal, pleadings and judgment/order/decree appealed from are mandatory and these are on record
Striking out of the Record of Appeal dated 3/12/2024
An incomplete record may be remedied by a supplementary record of appeal; the court had not yet certified the appeal ready for hearing
Costs
The costs of this application shall be borne by the appellant.
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.
My interpretation of the foregoing provisions is that the Memorandum of Appeal, the pleadings and the judgment, order or decree appealed from are mandatory. These cannot be dispensed with.
In my view there is discretion until such a reasonable time the court will be satisfied with the completeness of the record. A fundamental principle is that the court should take whichever course appears to carry the lower risk of injustice.
I agree it is only the court sitting on appeal herein that is clothed with the power to exclude a document and not counsel.
Appellant is hereby granted leave to file a supplementary record of appeal.
That the costs of this application shall be borne by the appellant.
Issues in the judgment
#The deponent's name of the replying affidavit is inconsistently rendered as 'Franklin Swaga Oloo', 'Francis Swaga Oloo' and 'Franklin Osogo Oloo' at different points, and the witness adopting it is called 'Frankline Swaga Otieno'
Paragraph numbering repeats - two consecutive paragraphs are numbered 39
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onyango v Oloo & 3 others (Environment and Land Appeal E025 of 2024) [2025] KEELC 7110 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7110/eng@2025-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.