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ELCPartially AllowedCase number not stated in the judgment (application dated 7th March, 2025; arise from appeal against judgment in Homabay CM ELC No. E036 of 2021)

Cooperative Bank of Kenya v Otiyo & 6 others (Environment and Land Appeal E039 of 2024) [2025] KEELC 8053 (KLR)

Environment and Land Court
11 November 2025
3,673 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a defective appeal record but kept the appeal itself alive, giving the appellant 21 days to refile properly.

What this practically means

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Executive summary

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The Applicants (the parties who won a judgment of 23rd January 2024 in Homabay CM ELC No. E036 of 2021) applied on 7th March 2025 to strike out the Appellant's Record of Appeal dated 19th August 2024 and Supplementary Record of Appeal dated 7th February 2025, contending they lacked a certified decree and contained illegible documents; they also sought release of the deposited title deed to parcel Kanyada/Kotieno Katuma "B"/286 and liberty to execute the decree. The Appellant opposed, arguing the decree requirement was procedural, the illegibility had been remedied, and striking out would offend fair hearing rights under Articles 47, 48 and 50 of the Constitution. Applying IRAC, the court examined Order 42 Rules 2, 11 and 13(4) of the Civil Procedure Rules and held that while the absence of a decree renders the record incurably defective, Rule 13(4)(f)'s use of 'or' means a judgment on the record suffices, and unlike the Court of Appeal rules, the Civil Procedure Rules do not mandate striking out the appeal. Following Loopa v Technoplast Ltd and Article 159(2)(d), the court held striking out the appeal for want of a decree would be draconian. The application partially succeeded: the Record of Appeal and Supplementary Record of Appeal were struck out with costs capped at KShs 30,000 per participating Respondent; the Memorandum of Appeal survived. The Appellant was given 21 days to file a fresh complete record, failing which the entire appeal stands dismissed with costs. The prayers to release the title deed and to execute the decree were refused, as they would only be appropriate had the appeal been dismissed.

Questions the Court framed

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

  1. 1.Whether the application dated 7th March, 2025 is merited, namely whether the Record of Appeal and Supplementary Record of Appeal ought to be struck out for want of a decree and for illegibility, whether the deposited title deed should be released to the Applicants, and whether the Applicants should be at liberty to execute the decree

Key legal issues

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01

Whether absence of a certified copy of the decree from the Record of Appeal and Supplementary Record of Appeal renders the appeal incompetent and liable to be struck out

Holding

The absence of the decree renders the records defective and they were struck out, but it does not compel striking out the appeal itself; the Memorandum of Appeal survives and a fresh complete record must be filed

Reasoning

Order 42 Rule 13(4) requires the judge to be satisfied that the memorandum, pleadings and the judgment, order or decree appealed from are on record before allowing an appeal to go to hearing. Paragraph (f) uses 'or', so a judgment suffices where no decree is annexed. Unlike Court of Appeal rules, the Civil Procedure Rules do not mandate striking out an appeal for want of a decree; the record, not the appeal, is what falls away.

p. 6
02

Whether the illegibility of certain pages of the Record of Appeal justified striking out the appeal

Holding

The court accepted that legible copies had been supplied in the record, and treated the complaint as remediable rather than fatal

Reasoning

The Appellant's advocate explained that illegibility resulted from reprinting and scanning and that substitute legible copies had been filed at specific pages. The court did not treat illegibility as incurable, instead directing that the fresh record to be filed contain clear or legible documents within 21 days, failing which the entire appeal stands dismissed.

p. 7
03

Whether the deposited title deed should be released to the Applicants for execution

Holding

Refused; such release would only be appropriate had the appeal been dismissed, which it was not

Reasoning

The title deed was deposited pursuant to a consent and consent order to facilitate the appeal. Since the court declined to strike out the appeal and left the Memorandum of Appeal intact, releasing the title for execution would contradict the existing regime and the pending appeal.

p. 7

Legal principles established

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  • Where a judgment is contained in a record of appeal under Order 42 Rule 13(4)(f) of the Civil Procedure Rules, the conjunction 'or' means a decree need not also be included; the absence of a decree is a technicality that does not render the appeal incurably defective
  • Failure to include compulsory documents in a record of appeal renders the record defective, but the sanction is striking out the record, not the appeal, and the court may not set the appeal down for hearing until the defect is cured
  • Courts are obliged under Article 159(2)(d) of the Constitution to determine matters on their substantive merits rather than on procedural technicalities

Court orders

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  1. 1.Both the Record of Appeal and Supplementary Record of Appeal are struck out with costs to the Respondents/the Applicant and other parties who took part other than the Appellant
  2. 2.The costs to the Respondents on this account are capped at KShs 30,000/= to each Respondent who participated in the instant application
  3. 3.The Appellant shall file and serve a fresh and complete record of appeal, with clear or legible documents, within 21 days hereof and in default, the entire Appeal shall stand dismissed with costs to the Respondents, without further reference or application to the court
  4. 4.The appeal shall, assuming compliance, be mentioned for further directions on 21st January 2026

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Homa Bay
Homabay CM ELC No. E036 of 2021
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court under the Environment and Land Court Act over appeals from magistrates' courts (Section 79G Civil Procedure Act regime invoked)

Relief refused

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Release of the title deed in respect of Kanyada/Kotieno Katuma "B"/286 deposited in court, and liberty to execute the decree issued on 6th February, 2024

Granting those orders would be contrary to the orders already issued since it would only be applicable if the appeal had been dismissed, which is not the case; the appeal was not struck out

p. 7

Striking out of the entire Appeal

Only the Record of Appeal and Supplementary Record of Appeal were struck out; the Memorandum of Appeal remains intact

p. 7

Costs

Costs of the application to the Respondents/the Applicant and other parties who took part other than the Appellant, capped at KShs 30,000/= to each Respondent who participated in the instant application; the default in paragraph (c) would entail dismissal of the entire appeal with costs to the Respondents.

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.

Thus, where a judgment is contained in a record of appeal there is no need for a decree.
p. 6Sufficiency of judgment in lieu of decree in a record of appeal
The efiect of failure to include the compulsory documents renders the Record of Appeal incurably defective.
p. 5Effect of omitting compulsory documents from the record
Article 159(2)(d) of the Constitution obligates courts to determine matters on substantive bases rather than mere technicalities which do not go to the substance of the same.
p. 6Substantive justice over technicalities
That both the Record of Appeal and Supplementary Record of Appeal are hereby struck out with costs to the Respondents/ the Applicant and other parties who took part other than the Appellant.
p. 7Final orders - striking out the records
The costs to the Respondents on this account are capped at KShs 30,000/= to each Respondent who participated in the instant application.
p. 7Final orders - capped costs
That the Appellant shall file and serve a fresh and complete record of appeal, with clear or legible documents, within 21 days hereof and in default, the entire Appeal shall stand dismissed with costs to the Respondents, without further reference or application to the court.
p. 7Final orders - cure period and default sanction

Issues in the judgment

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minor

The case number of the present appeal/application before the court is never stated in the judgment

minor

The judgment refers to the parties inconsistently as Respondents in the application and Applicants, and in places the Appellant's role labels are conflated (e.g. counsel for the '1st to 4th Respondents' submissions against the Appellant)

minor

The judgment appears to treat the Appellant as the 'Respondent' to the application while the Applicants are the 1st-4th/6th-7th parties, but the caption itself is not reproduced, making exact party designations uncertain

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, "Cooperative Bank of Kenya v Otiyo & 6 others (Environment and Land Appeal E039 of 2024) [2025] KEELC 8053 (KLR)", Case Analysis (2025). Case number not stated in the judgment (application dated 7th March, 2025; arise from appeal against judgment in Homabay CM ELC No. E036 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8053/eng@2025-11-11

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