Esther Gikiri v Fatuma Ahmed Jama
The bottom line
#Kenya's Environment and Land Court dismissed a land appeal because the appellant filed an incomplete record, showing courts will not hear appeals missing key documents.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal founded on a record of appeal that omits the certified proceedings in which the parties testified and produced exhibits is competent.
- 2.Whether such an appeal ought to be dismissed (or struck out) for incompetency.
Key legal issues
#Whether an appeal built on an incomplete record of appeal is competent.
No - it is incompetent and defective and must be dismissed; the court has no adjudicatory mandate over it.
Order 42 Rule 13(4) prescribes the contents of a record of appeal: certified typed proceedings, judgment, decree, pleadings and documents, duly served. The Selle mandate to re-evaluate evidence presupposes a complete record. The appellant filed her record late and without the proceedings in which the parties testified and produced exhibits, precisely the material her twelve grounds required for re-evaluation, and offered no explanation. Following Bwana Mohammed Bwana, the court held the appeal incompetent and defective, leaving it no adjudicatory mandate.
When may an incomplete appeal be struck out or dismissed?
Only in the clearest of cases; an unexplained omission of proceedings going to the core of the appeal is such a case.
Citing Doris M. Wanjiru Kinuthia, the court acknowledged that compiling the record is a shared responsibility and that striking out is a remedy of last resort. But the appellant had ample time - mentions ran from September 2024 to a 15.9.2026 submissions deadline - and the record still omitted the certified proceedings. Since the omission went to the core of the appeal and was unexplained, the case fell within the clearest-of-cases category warranting dismissal.
What is the duty of a first appellate court on a first appeal?
To completely re-evaluate and re-analyse the trial evidence afresh and draw independent conclusions on law and fact, while mindful the trial court saw and heard the witnesses.
The court restated the Selle standard as the framework governing hearing of a first appeal under Section 78 of the Civil Procedure Act and Order 42. It used the standard to explain why a complete record is indispensable: without the proceedings, the mandated re-evaluation cannot be performed. The court never applied the standard to the evidence because the appeal failed on competency.
Legal principles established
#- An appeal without a record of appeal, or with the requisite documents omitted, is incompetent and defective.
- A court cannot exercise its adjudicatory powers over an incompetent appeal founded on an incomplete record.
- A first appellate court must completely re-evaluate and re-analyse the trial evidence afresh and draw its own conclusions, mindful that the trial court saw and heard the witnesses first hand.
- Striking out an appeal or suit is reserved for the clearest of cases.
Court orders
#- 1.The appeal is found incompetent and is hereby dismissed.
- 2.No order as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (trial court; exact station not stated)
- Jurisdiction invoked
- First appeal under Section 78 of the Civil Procedure Act read together with Order 42 of the Civil Procedure Rules
Relief refused
#Hearing of the appeal on the merits - the twelve grounds attacking the trial court's findings on title to LR No. 15400/33, the Dina Management decision, sections 26(1) and 24(a) of the Land Registration Act and Articles 50, 25(c) and 40 of the Constitution.
The appeal was incompetent; the record omitted the proceedings going to the core of the appeal and no explanation was given for the omission.
Re-evaluation of the trial evidence and substitution of the court's own findings on ownership, as the grounds of appeal demanded.
The Selle mandate of a first appellate court presupposes a complete record of the trial court proceedings, which was absent.
Costs
The appeal is dismissed with no order as to costs.
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.
In the circumstances, the appeal is found incompetent and is hereby dismissed with no order as to costs.
without a record of appeal or one with omitted requisite bundle of documents, the appeal is incompetent and defective, for failing the requirements of the law
The memorandum of appeal and record of appeal must be duly served; an incomplete record of appeal may lead to striking out of an appeal
Striking out an appeal or a suit should only be done in the clearest of cases.
For the court to exercise its mandate, it has to have a complete record of the proceedings that were before the trial court.
Issues in the judgment
#Suit property cited inconsistently: 'L.R. No.15400/33' in the grounds of appeal versus 'LR No. 15400/533' in the amended plaint prayer.
Respondent's gender is inconsistent across the judgment: 'he' in the arrest narrative, 'she' in the defence account.
Manchester Outfitters carries both a [2002] KECA 303 citation and 'Civil Appeal No. E011 of 2024' - internally inconsistent reference.
Delivery date omits the year; 2026 inferred from the procedural timeline (submissions deadline 15.9.2026).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Gikiri v Fatuma Ahmed Jama", Case Analysis (2026). ELC Appeal E075 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6216/eng@2026-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.