National Land Commission v Tom Ojienda & Associates & 2 others
The bottom line
#Supreme Court strikes out NLC appeal for improper e-filing and lack of certification.
What this practically means
#The Supreme Court of Kenya struck out the National Land Commission's appeal because it was not properly filed. The NLC uploaded its petition as an annexure to a motion, not as a separate appeal, so no case number was generated. Also, the NLC had not yet obtained required certification from the Court of Appeal. Without a valid appeal on record, the Court had no jurisdiction to hear the case. Each party paid its own costs.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is a petition of appeal on record
- 2.Whether this court has jurisdiction to hear and determine the petition of appeal
- 3.Whether the petition of appeal has been overtaken by events
- 4.Whether the parties are entitled to the reliefs sought
Key legal issues
#Whether there is a valid petition of appeal on record
There is no petition of appeal on record because the applicant filed the petition as an annexure to a notice of motion under the applications section of the e-filing portal, and no petition number was generated.
The court examined the e-filing records and found that the applicant uploaded the petition of appeal under the applications section together with the notice of motion, so the portal could not generate a petition number. The applicant did not regularize this despite being notified. Rule 12(1) of the Supreme Court Rules requires both printed and electronic filing, and rule 39 sets out requirements for instituting an appeal including a petition of appeal, record of appeal, and prescribed fee. The court held that a petition of appeal must be filed as an appeal, not as an annexure to an application.
Whether the Supreme Court has jurisdiction to hear the appeal
The Supreme Court lacks jurisdiction because the applicant has not obtained certification from the Court of Appeal under Article 163(4)(b), and the petition does not properly invoke Article 163(4)(a) as there is no valid appeal on record.
The court noted that the applicant's application for certification is pending before the Court of Appeal. Under section 15B(2) of the Supreme Court Act, certification must first be obtained from the Court of Appeal. Since there is no appeal on record, it would be futile to determine jurisdiction. The court cited its decisions in Hermanus Phillipus Steyn and Hassan Nyanje Charo for the proposition that leave to appeal must originate in the Court of Appeal.
Legal principles established
#- A petition of appeal must be filed separately on the e-filing portal, not as an annexure to an application.
- The Supreme Court cannot hear an appeal under Article 163(4)(b) without prior certification from the Court of Appeal.
- An interlocutory application for conservatory orders requires a valid, numbered appeal to be on record first.
- Failure to regularize defective e-filing despite notification leads to striking out of the entire appeal.
- Each party bears its own costs when procedural defects prevent the court from reaching the merits.
Court orders
#- 1.The preliminary objection dated January 11, 2024 is hereby allowed
- 2.The notice of motion dated February 1, 2024 is hereby allowed to the extent that the petition of appeal dated December 18, 2023 be and is hereby struck out for want of jurisdiction
- 3.The notice of motion dated December 18, 2023 is hereby struck out
- 4.The petition of appeal dated December 18, 2023 is hereby struck out
- 5.Each party shall bear its costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Kisumu
- Civil Appeal No E247 of 2022
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Stay of execution of the orders of the High Court made on August 2, 2022
No petition of appeal on record and court lacked jurisdiction
Costs
Each party shall bear its 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.
With our finding that there is no appeal coupled with lack of jurisdiction, the applications are for striking out.
Section 23A of the Supreme Court Act mandates the court to only entertain an application for conservatory orders, such as the present one, after the filing of a petition of appeal before court.
Key timeline
#Practical implications
#E-filing compliance is mandatory
Ensure every appeal document is filed under the correct case type on the e-filing portal. Filing a petition as an annexure to a motion will not generate a case number and renders the appeal invalid. Regularly check portal notifications and correct any defects promptly to avoid strike-out.
Verify appeal process before acting
If you are a party to litigation and the other side appeals, confirm that the appeal is properly filed and that any required certification (e.g., from the Court of Appeal) has been obtained. An improperly filed appeal cannot support interim orders like stays, so you may proceed with enforcement sooner.
Court procedures must be followed exactly
Even government bodies like the National Land Commission must follow court rules precisely. If you are involved in a case, ensure your lawyer files documents correctly. A simple mistake like uploading a petition in the wrong section can end your appeal entirely, with no chance to fix it later.
Frequently asked questions
#What happens if I file a petition of appeal as an annexure in Kenya's Supreme Court e-filing system?+
The court will treat it as not properly filed. No case number is generated, and the appeal is invalid. The Supreme Court may strike out the entire appeal, as happened in this NLC case.
Do I need certification from the Court of Appeal before appealing to the Supreme Court in Kenya?+
Yes, for appeals under Article 163(4)(b) of the Constitution (matters of general public importance). You must first obtain leave from the Court of Appeal. The Supreme Court cannot hear the appeal without that certification.
Can the Supreme Court grant a stay of execution if the appeal is not properly filed in Kenya?+
No. The Supreme Court can only consider an application for conservatory orders after a valid petition of appeal is on record. If the appeal is defective, the court lacks jurisdiction to grant any interim relief.
What are the costs consequences of an improperly filed appeal in Kenya's Supreme Court?+
The court may order each party to bear its own costs, as it did in this case. This means the appellant (NLC) does not pay the respondent's legal fees, but also cannot recover its own costs.
Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kinluck Holdings Limited v Mint Holdings Limited & another (Environment and Land Case E273 of 2025) [2025] KEELC 7381 (KLR)[2025] KEELC 7381 (KLR)30 Oct 2025applied
- Njenga v Masto Holdings Limited & 4 others; The Co-Operative Bank Of Kenya (Interested Party)[2024] KESC 60 (KLR)18 Oct 2024
Cite this brief
#Cite this brief
Caselaw, "National Land Commission v Tom Ojienda & Associates & 2 others", Case Analysis (2024). Application E051 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/16/eng@2024-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.