Salome Nduta Maara v George J. Maara
The bottom line
#A Kenyan court refused to strike out a land appeal over missing documents, ruling the gap could be fixed by filing a supplementary record.
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 Record of Appeal is incomplete and, if so, whether the omission renders the appeal incompetent and liable to be struck out
Key legal issues
#Whether omission of affidavits from the Record of Appeal renders the appeal incompetent
The omission renders the record incomplete but not fatally defective; the appeal is not struck out and leave is granted to file a further supplementary record
Order 42 Rule 13(4) lists required documents, but the proviso allows the judge to dispense with any document not relevant except paragraphs (a), (b) and (f). The omitted affidavits fall under paragraph (e). The core documents are on record, the omissions can be readily supplied, and no prejudice was shown. Article 159(2)(d) is satisfied by requiring compliance now rather than shutting the litigant out.
Whether the Respondent's delay in raising the complaint weighs against striking out
Although no rule bars the Respondent from raising the point, the timing weighs against the drastic remedy of striking out
The Respondent was served with the Record and Supplementary Record in 2024, took directions on 23rd January 2025 and 29th May 2025 without complaint, and filed appeal submissions on 15th September 2025, the same week the striking-out application was lodged. The Appellant bears primary responsibility for the incomplete record, but the Respondent's silence and late objection weigh against striking out.
Legal principles established
#- Only the memorandum of appeal, the pleadings and the judgment/order/decree appealed from are indispensable in a record of appeal; omissions of other documents are curable
- An omitted document may render a record of appeal defective without rendering it incurably defective
- Striking out an appeal is a draconian remedy reserved for defects that cannot be cured without injustice
Court orders
#- 1.The Respondent's Notice of Motion dated 11th September 2025 is dismissed
- 2.The Appellant is granted leave to file and serve, within fourteen (14) days, a Further Supplementary Record of Appeal containing the Respondent's Supporting Affidavit sworn on 14th December 2022 with all annexures, the affidavit filed in response on 27th January 2023, and any other affidavit or document filed pursuant to the leave granted on 7th December 2022
- 3.Upon service, the Respondent may file supplementary submissions limited to the documents in order (b) within fourteen (14) days; the Appellant may file further submissions within seven (7) days of service
- 4.In default of compliance with order (b), the Respondent may move the Court appropriately
- 5.Each party shall bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Trial court (Limuru ELC Case No. E020 of 2022)
- Limuru ELC Case No. E020 of 2022
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court under Order 42 Rule 13 and Order 51 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act
Relief refused
#Striking out of the Appellant's Memorandum of Appeal and Record of Appeal
The omitted affidavits are not indispensable under the proviso to Order 42 Rule 13(4); the defect is curable by a supplementary record and striking out is a draconian remedy
Costs of the application to the Respondent
Each party to bear own costs
Costs
Each party shall bear its own costs of the application.
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.
Only those three categories are therefore indispensable. The documents in issue here fall under paragraph (e).
an omitted document may render a record of appeal defective without rendering it incurably defective.
Striking out is a draconian remedy, to be reserved for cases where the defect cannot be cured without injustice.
The proper order is to allow the Appellant to file a supplementary record, not to strike out the appeal.
The Respondent's Notice of Motion dated 11 th September 2025 is hereby dismissed;
Issues in the judgment
#Supporting Affidavit attributed to two different cases
Earlier described as filed in Limuru CMCC No. 281 of 2020
Delivery date of October 2026 postdates submissions of December 2025 by nearly a year
Ruling delivered virtually at Malindi though the court is stated as Thika
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salome Nduta Maara v George J. Maara", Case Analysis (2026). ELC Land Appeal No. E019 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6271/eng@2026-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.