https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12112

Muthoka v Gateway Insurance Company Ltd & 2 others (Civil Appeal 151 of 2024) [2026] KEHC 12112 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KEHC 12112 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal 151 of 2024 J Ngaah, J July 31, 2026 Between Esmail Nzomo Muthoka Appellant and Gateway Insurance Company Limited 1st Respondent Fidelity Shield Insurance Company Limited 2nd Respondent The Kenya Alliance Insurance Company Limited 3rd Respondent (Being an appeal from the judgment of Hon. G. Sogomo, Principal Magistrate, delivered on 31st May, 2024 in Mombasa Chief Magistrate’s Court Civil Case No. 2716 of 2011) Judgment Introduction and background 1.The appellant was the plaintiff in Mombasa Chief Magistrate’s Court Civil Case No. 2716 of 2011. The suit was, in substance, one brought under the Insurance (Motor Vehicles Third Party Risks) Act, chapter 405 of the Laws of Kenya. The appellant pleaded that on 23rd December, 2002 he sustained injuries in a road traffic accident along the Mombasa–Nairobi road involving three motor vehicles whose owners were, at the material time, insured by the 1st, 2nd and 3rd respondents respectively; that he sued the respective insureds in Mombasa CMCC No. 2140 of 2004 and obtained judgment against them; and that, the insureds having failed to satisfy that judgment, the respondents, as their insurers, were statutorily bound to do so. He accordingly prayed for judgment against the respondents jointly and severally for Kshs. 81,522.50 together with interest thereon at the rate of 12% per annum from 26th August, 2011 and the costs of the suit. 2.The respondents resisted the suit on their respective statements of defence. Upon hearing the parties, the learned trial magistrate, Hon. G. Sogomo, Principal Magistrate, in a judgment delivered on 31st May, 2024, dismissed the appellant’s suit with costs. 3.Aggrieved by that decision, the appellant preferred the instant appeal by way of a memorandum of appeal dated 7th June, 2024 in which he complains, in five grounds, that the learned magistrate erred in law and in fact in dismissing his suit; in misapprehending the evidence adduced before him; in misapprehending the principles applicable in pleadings; in failing to find that the respondents were liable to the appellant; and, in awarding the costs of the suit to the respondents. The appellant urges this court to set aside the judgment of 31st May, 2024 and to substitute therefor a judgment in his favour as prayed in the plaint, with the costs of the appeal and of the court below. 4.The appellant thereafter lodged his record of appeal dated 3rd February, 2025. It is that record which fell for consideration under Order 42 rule 13 of the Civil Procedure Rules and which has given rise to the question determined in this judgment. The question for determination: competency of the appeal 5.Before an appeal of this nature is allowed to proceed to hearing, this court is enjoined, by Order 42 rule 13(4) of the Civil Procedure Rules, to satisfy itself that the record of appeal contains certain specified documents. The exercise is not an idle formality; it goes to the competency of the appeal and, with it, to the jurisdiction of this court to entertain it. Being a question of jurisdiction, it is one which the court is not only entitled but bound to consider on its own motion, whether or not it is raised by the parties; and where the court finds jurisdiction wanting, it has no option but to down its tools (see Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Limited [1989] KLR 1). 6.I have perused the record of appeal in its entirety. Its index lists twenty-two documents, namely, the memorandum of appeal; the plaint; the appellant’s witness statements, lists of witnesses and copies of documents; the respondents’ respective statements of defence, lists of witnesses, witness statements and lists of documents; sundry affidavits; and the parties’ respective submissions before the trial court. The record closes with a copy of the judgment of the trial court delivered on 31st May, 2024. Nowhere in the index, and nowhere in the body of the record, is there a decree, certified or otherwise, drawn from that judgment. 7.For the avoidance of doubt, the only decree to be found anywhere in the record is the decree in Mombasa CMCC No. 2140 of 2004, which was an exhibit at the trial; it is the decree that the appellant sought to enforce against the respondents in the suit and it is plainly not the decree appealed from. There is, further, nothing in the record to suggest that a decree in CMCC No. 2716 of 2011 was ever extracted or, indeed, that one was ever applied for; there is no certificate of delay; and the certificate appended to the record by counsel for the appellant states no more than that the record was prepared in accordance with the copies provided by the Executive Officer of the Chief Magistrate’s court. A supplementary record of appeal was filed, but it has nothing more than the judgment of 31 May 2024. The law 8.The right of appeal is a creature of statute; it exists only where, and to the extent that, statute confers it. Section 65(1)(b) of the Civil Procedure Act, chapter 21 of the Laws of Kenya, is the fount of this court’s appellate jurisdiction in matters of this kind, and it confers a right of appeal to the High Court from the decrees of subordinate courts. The operative word is ‘decrees’: the appeal contemplated by the statute is an appeal from the decree, and not from the judgment or the reasons upon which the decree is founded. 9.The distinction between the two is drawn by the interpretation section of the Act itself. Section 2 of the Civil Procedure Act defines a ‘decree’ in the following terms:“decree” means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it shall be deemed to include the striking out of a plaint and the determination of any question within section 34 or section 91, but shall not include— (a) any adjudication from which an appeal lies as an appeal from an order; or (b) any order of dismissal for default; 10.A ‘judgment’, on the other hand, is defined by the same section to mean “the statement given by the judge of the grounds of a decree or order”. The judgment, in other words, supplies the reasons; the decree is the formal expression of the adjudication itself. It is the decree that is executed, and it is the decree that is appealed. 11.The dismissal of the appellant’s suit on 31st May, 2024 was a dismissal on the merits after a full trial; it conclusively determined the rights of the parties in the suit and was therefore an adjudication from which a decree fell to be drawn in the ordinary way. A decree was, accordingly, both necessary and capable of extraction; the appellant simply never extracted one. 12.The centrality of the decree to the appellate process is underscored by section 79G of the Civil Procedure Act, which provides 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." 13.Time for appealing thus runs from the date of the decree; and the only period which the statute permits to be excluded is such time as the lower court certifies to have been required for the preparation and delivery to the appellant of a copy of that decree. The whole scheme of the provision presupposes that the appellant will apply for, obtain and place before the appellate court the decree appealed from. 14.Order 42 rule 2 of the Civil Procedure Rules speaks to the same effect:“Where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such time as the court may order, and the court need not consider whether to reject the appeal summarily under section 79B of the Act until such certified copy is filed." 15.The rule extends an indulgence: an appellant who files his memorandum of appeal before obtaining the certified copy of the decree is not thereby shut out, but the obligation is cast upon him to file the certified copy ‘as soon as possible’. The indulgence is not an open-ended licence to prosecute an appeal without a decree in perpetuity. 16.Finally, Order 42 rule 13(4) of the Rules provides that before allowing an appeal to go for hearing the judge shall be satisfied that the documents there enumerated are on the court record, among them, at paragraph (f), “the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal”. Significantly, the proviso to the sub-rule permits the judge to 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)”. The decree appealed from is thus among the irreducible minimum contents of a record of appeal; it is not a document whose production this court has power to dispense with. 17.This is not new ground. I have had occasion to consider this self-same question in a number of appeals, and my position has been consistent. In Ndegwa Kamau t/a Sideview Garage v Fredrick Isika Kalumbo, Nyeri HCCA No. 51 of 2013 [2016] eKLR, I held as follows:“…there is no evidence that the appellants ever applied for the decree appealed against, let alone filing it as part of the record of appeal. Without belabouring the point, this failure is fatal to the appeal; sheer failure to comply with the foregoing mandatory statutory and procedural provisions renders this appeal incompetent and of no consequence…" 18.I took the same view in Kulwant Singh Roopra v James Nzili Maswii [2014] eKLR; Joseph Kamau Ndungu v Peter Njuguna Kamau [2014] eKLR; and Paul Kurenyi Leshuel v Ephantus Kariithi Mwangi & another, HCCA No. 76 of 2013 [2015] eKLR; and, more recently, in Rapid Kate Services Limited v Stephen Otieno Ouma, Mombasa HCCA No. 87 of 2018, where the appeal was struck out in materially identical circumstances. Nor does this court stand alone in that position: see, by way of example only, Lucas Otieno Mesaye v Lucia Olewe Kidi, Kisumu HCCA No. 27 of 2020 [2022] eKLR, and Rentworks East Africa Limited v Jeniffer Kinya Simon [2022] KEHC 2094 (KLR), in which appeals lodged without the decree appealed from were, for that reason, held incompetent and struck out. 19.I am aware that there is authority taking a more indulgent view, notably Emmanuel Ngade Nyoka v Kitheka Mutisya Ngata, Civil Appeal No. 63 of 2016 [2017] eKLR, and decisions of this court that have followed it, to the effect that where a certified copy of the judgment is on the record, the omission of the decree ought not, in the era of article 159(2)(d) of the Constitution, to be visited with the striking out of the appeal. I have given that line of authority anxious consideration but, with the greatest respect, I remain unpersuaded that it can prevail over the plain words of the statute. Article 159(2)(d) of the Constitution enjoins the courts to administer justice without undue regard to procedural technicalities; it neither abolishes the rules of procedure nor confers upon a court a jurisdiction which statute has withheld. The requirement of a decree is not a technicality: it defines the very subject matter of the appeal, for without the decree there is, strictly speaking, nothing before the appellate court identifying with precision the adjudication said to be appealed from. In any event, Order 42 rule 2 of the Rules already embodies the very accommodation which the principles underlying article 159(2)(d) might otherwise be invoked to supply: it permits an appellant to file his memorandum of appeal first and the certified copy of the decree thereafter, provided that he does so as soon as possible. An appellant who never invokes that indulgence at all cannot, in my respectful view, be heard to shelter under article 159(2)(d) of the Constitution. Application and determination 20.Applying these principles to the appeal before me, the position is this: the judgment sought to be impugned was delivered on 31st May, 2024; the memorandum of appeal is dated 7th June, 2024; and the record of appeal is dated 3rd February, 2025. At no point, in the period of more than two years that has now run since the judgment was delivered, has the appellant extracted the decree, filed a certified copy of it, obtained a certificate of delay, or so much as applied for any of these; nor has any explanation been proffered for the omission. What is before the court, then, is a record of appeal wanting one of its irreducible statutory contents. 21.On the authorities that I have set out, that omission is fatal. There being no decree appealed from, there is no competent appeal before this court and no jurisdiction has been invoked which the court can exercise. In the language of Nyarangi, JA in the Lilian S case, this court must down its tools. Disposition 22.In the result, I make the following orders:(a)Civil Appeal No. 151 of 2024 is hereby struck out as incompetent for want of a certified copy of the decree appealed from;(b)the costs of the appeal are awarded to the respondents. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA ON 31 JULY 2026.NGAAH JAIRUSJUDGE