[2019] KEHC 2805 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

[CORAM: MRIMA, J.]

CIVIL APPEAL NO. 109 OF 2018

ABDI YUSUF........................................................................................................................APPELLANT

VERSUS

1. FAITH KINYA KIAIRA

2. ESTHER MWAMATU (suing as the Legal Representatives of John Paul Kiaira Kaburu - Deceased)

3. GEOFFREY KABIRO MUCHEKE.........................................................................RESPONDENTS

(Being an appeal from the judgment and decree by Hon. L. Ambasi, Chief Magistrate in Meru Chief Magistrate’sCivil Suit No. 613 of 2010 delivered on 12/06/2018)

JUDGMENT

1. John Paul Kiaira Kaburu (hereinafter referred to as ‘the deceased’) was fatally wounded in a road traffic accident along Meru – Maua road on 13/03/2010. The 1st and 2nd Respondents herein, Faith Kinya Kiairaand Esther Mwamatu,filed Meru Chief Magistrate’s Civil Suit No. 613 of 2010(hereinafter referred to as ‘the suit’). They sued two Defendants; Abdi Yusuf and Geoffrey Kabiro Mucheke. Abdi Yusuf is the Appellant herein and Geoffrey Kabiro Mucheke is the 3rd Respondent.

2. Abdi Yusuf was sued as the owner of motor vehicle registration number KBJ 707Rmake Toyota Pick Up. Geoffrey Kabiro Mucheke was sued as the owner of motor vehicle registration number KAP 672Wmake Fartac Tractor. The two vehicles collided and the deceased suffered fatal injuries.

3. The suit was heard and judgment rendered on 12/06/2018. The Appellant was found wholly liable for the accident. Damages were assessed at Kshs. 4,094, 684/=.

4. The Appellant was wholly dissatisfied with the judgment. He filed a Memorandum of Appeal on 30/10/2018. Seven grounds of appeal were preferred.

5. Directions were taken and the appeal was disposed of by way of written submissions. All the parties duly complied. The Appellant contended that the court erred in wholly apportioning liability to him and also by awarding excessive damages. He sought a review. He also relied on several decisions in urging this Court to allow the appeal.

6. The Respondents opposed the appeal. They submitted that the liability was apportioned properly and that the awards were commensurate to the circumstances of the case.

7. The duty of the first appellate Court is to revisit the evidence on record, evaluate it and reach its own conclusion in the matter. (See the case of Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123). The Court must nevertheless appreciate that it will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the appellate Court is shown demonstrably that the trial court acted on wrong principles in reaching the findings. That was the holding in Mwanasokoni -versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278and Kiruga –versus- Kiruga & Another (1988) KLR 348).

8. I have carefully perused and understood the contents of the pleadings, the proceedings, the judgment, the record of appeal, the grounds of appeal, the submissions and the decisions referred to by the parties. I must point out that the trial court captured the contents of the pleadings and the evidence in its judgment so well. I herein incorporate the same as part of this judgment by reference.

9. I noted an arnomaly on the record of appeal. Although the issue was not taken up by the parties I will still deal with it as it goes to the substance and competency of the appeal. It is about the filing of the appeal out of time without leave of this Court. Alternatively, it may be a case of absence of the order granting leave to file the appeal out of time from the record of appeal.

10. I have also perused the lower court file. I did not come across any extracted order granting leave to file the appeal out of time. The Memorandum of Appeal itself did not indicate that it was filed pursuant to grant of leave to file the appeal out of time.

11. I will now deal with the effect of the absence of the order granting leave to file the appeal out of time in the record of appeal.

12. Section 65(1) of the Actis the basis of appeals from the subordinate courts to the High Court. It provides as follows: -

Except where otherwise expressly provided by this Act, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie to the High Court-

(a) (Deleted by 10 of 1969, Sch.);

(b) from any original decree or part of a decree of a subordinate court,other than a magistrate’s court of the third class, on a question of law or fact;

(c) from a decree or part of a decree of a Kadhi’s Court, and on such an appeal the Chief Kadhi or two other Kadhis shall sit as assessor or assessors.

13. Section 79G of the Actprovides for the time within which the appeal in Section 65(1) of the Actmay be filed. It states as follows: -

Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:

Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

14. Appeals from orders are provided for in Sections 75 and 76 of the Act and Order 43 of the Rules. Order 42 Rule 1 of the Rulesprovide that an appeal to the High Court shall be in the form of a Memorandum of Appeal signed in the same manner as a pleading.

15. Once an appeal is lodged aforesaid, a Record of Appeal is then filed. The contents of the Record of Appeal are provided for in Order 42 Rule 13(4) of the Rules as follows: -

Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record and that such of them as are not in the possession of either party have been served on that party that is to say:

(a) the memorandum of appeal;

(b) the pleadings

(c) the notes of the trial magistrate made at the hearing;

(d) the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;

(e) all affidavits, maps and other documents whatsoever put in evidence before the magistrate;

(f) the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal;

Provided that-

(i) a translation into English shall be provided of any document not in that language;

(ii) the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).

16. A Record of Appeal is essentially supposed to be complete with all necessary documents. Courts have severally dealt with cases of incompleteness of Records of Appeal.

17. The Supreme Court in Civil Application No. 20 of 2014 Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others (2014) eKLR referred to its earlier finding in Law Society of Kenya vs Centre for Human Rights and Democracy & Others, Supreme Court Petition No. 14 of 2013 as follows: -

[16] For a competent appeal to lie before this Court it must comply with the provisions of Rule 33(1) of the Supreme Court Rules, 2012 which provides that:

An appeal to the Court shall be instituted by lodging in the registry within thirty days of the date of filing of the notice of appeal –

(a) a petition of appeal;

(b) a record of appeal; and

(c) the prescribed fee.

[17] …………….

[36] The use of the word ‘shall’ in Rule 33(1) suggests the mandatory nature of the rule, requiring strict adherence to the completeness of the rule. Thus, a strict reading of rule 33(1) leads to the conclusion that an appeal comprises the Petition, the Record of Appeal, and the prescribed fee.

[37] ……….

[38] The Record of Appeal is the complete bundle of documentation, including the pleadings, submissions, and judgment from the lower Court, without which the appellate Court would not be able to determine the appeal before it.

18. The Court further held, at paragraph 39, that:

[39] If an intending appellant were to present the Court with a Notice and Petition of Appeal, but without the Record of Appeal, and expect the Court to determine ‘the appeal’ on the basis of these two, such an appeal would be incomplete and hence incompetent. Indeed, this is the gist of Rule 33(1) of the Supreme Court Rules.

19. Ngaah, J in Nyeri High Court Civil Appeal No. 51 of 2013 Ndegwa Kamau t/a Sideview Garage v Fredrick Isika Kalumbo (2016) eKLR dealt with how the Court of Appeal in Kyuma vs Kyema (1988) KLR 185 dealt with the interpretation of Section 79G of the Act.

20. The Court of Appeal held as follows: -

The question is what documents must the appellant file within thirty days or within the time lawfully extended by the certificate of delay” Since the question contemplates that the appeal is against a decree or order, the appellant is obliged to apply first, Memorandum of Appeal in the form set out in appendix F No. 1 of the Civil Procedure Rules and second, a copy of the formal order of the court, if available. Rule 1A of Order 41 permits this latter document to be filed as soon “as possible and in any event within such a time as the court may order”. Therefore a certificate of delay within the true intendment of section 79G must certify the time it took to prepare and deliver to the appellant “a copy of the order” of the magistrate. But the certificate of delay exhibited by the appellant, did not speak of a decree or order . No such order was sought or extracted. What the appellant, in error, sought and what the court dutifully supplied, were the proceedings and judgment”.

21. Sitati, J in Kakamega Election Petition Appeal No. 3 of 2018 Elvis Anyimbo Sichenga v Orange Democratic Movement & 4 Others (2016) eKLR dealt with the same issue in an election petition appeal from the surbodinate court. In that appeal the Record of Appeal did not include the decree of the judgment appealed against. The Learned Judge held as follows: -

32. What then am I saying about the failure by the appellant to attach a certified copy of the decree appealed from? I am saying that that omission is not a mere technicality for if it were so, the drafters of the rules would not have made its attachment a mandatory requirement. I am therefore satisfied that the applicant has satisfied this court that the said omission is fatal to the petition and I so find.

22. I will also add my voice on the subject. First, from the reading of Section 65(1) of the Act it is the decree or part thereof that is appealed from the surbodinate court to the High Court. Second, under Order 42 Rule 13(4) of the Rules a Court may dispense with any document to be part of the Record of Appeal except the memorandum of appeal, the pleadings and the judgment, order or decree appealed from and in appropriate cases the order giving leave to appeal. Third, the saving grace under Article 159(2)(d) of the Constitution is inapplicable in this case. That is because the provision only applies to matters relating to procedure or form and not the substance thereof. Fourth, despite clear provisions on extension of time the Appellant never sought for any extension of time to obtain and file the order on extension of time. The Appellant further did not they explain any difficulty in obtaining the leave to appeal out of time.

23. The appeal was filed over 4 months’ post judgment. From the record no leave to appeal out of time was sought and obtained. The Record of Appeal is therefore incomplete for want of the order granting the leave to appeal out of time. In the words of the Supreme Court in Civil Application No. 20 of 2014 Bwana Mohamed Bwana(supra) ‘such an appeal would be incomplete and hence incompetent.’The appeal is for rejection.

24. Having said so, there is no competent appeal for consideration. The appeal is therefore struck out with costs.

25. Orders accordingly.

SIGNED BY:

A. C. MRIMA

JUDGE

DATED, COUNTERSIGNED and DELIVERED at MERU this 30th day of October, 2019.

A. MABEYA

JUDGE

Judgment delivered in open Court and in the presence of: -

…………………………………………………………………. for the Appellants.

…………………………………………………………………. for the Respondent.

……………………………………………….. Court Assistant