[2023] KEHC 25229 (KLR)

In re Thuweba Farid (Deceased) (Family Appeal E32 of 2021) [2023] KEHC 25229 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25229 (KLR)

Republic of Kenya

In the High Court at Mombasa

Family Appeal E32 of 2021

G Mutai, J

November 6, 2023

Between

Farid Mote

1st Appellant

Msellem Mote

2nd Appellant

Shale Farid Mote

3rd Appellant

Maryam Farid Mote

4th Appellant

and

Mohamed Ali Shekuwe (Suing as the Lawful Attorney of Shale Bunu Ndima)

Respondent

Ruling

1. Section 79B of the Civil Procedure Act provides that:-‘“Before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree, part of a decree or order appealed against he may, notwithstanding section 79C, reject the appeal summarily.”

2. The appeal in this matter was filed on 12th October 2021. The appellant raised three grounds of appeal to wit:-a.The learned Kadhi erred in law and in fact, in awarding the petitioner two units of two bedrooms from the deceased’s estate in disregard of the valuation report;b.The learned Kadhi erred in law and in fact by awarding the respondent a share that is in excess of her entitlement; andc.The learned Kadhi erred in law and in fact by failing to base this decision on the existing evidence.

3. It is evident that this appeal has not been prosecuted with due diligence. The parties have appeared in court on several occasions for mention. On 19th October 2023, I gave the appellant 14 days to file a record of appeal, failing which the appeal would stand dismissed. The appellant did file a record within the prescribed period. However, the record omitted to include the impugned ruling.

4. When the matter came for direction on 6th November 2023, Mr. Mwadzogo, the learned counsel for the respondent, submitted that I shouldn’t admit the appeal but should instead dismiss it summarily under section 79B of the Civil Procedure Act. He urged that there was material noncompliance with my previous orders. In his view, the purported record was filed to defeat my earlier orders.

5. Mr. Hamza, learned counsel for the appellant, submitted in opposition to the objection by the respondent that there is no requirement for a Record of Appeal to be filed in respect of appeals from the courts below to this court. He urged that I should allow the appeal as the omission on his part was curable by the filing of a supplementary record of appeal, which he could do within 15 days if he were given an opportunity.

6. I have considered the rival submissions by the parties. In doing so, I must determine if a record of appeal, by whatever name called, is required in respect of appeals from subordinate courts. It would appear to me that my port of call in that case is order 42 of the Civil Procedure Rules. Order 42 rule 13 (4) (a) of the said rules provides that:-“(4)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).”

7. The provisions of the Rules are couched in mandatory terms. These documents are what is ordinarily referred to as the record of appeal. In any case, the appeal is premised on points of law and fact. I do not see how the court could make determinations on issues of fact unless there is a Record of Appeal.

8. In any case, the record of appeal, even if the Civil Procedure Act and Rules didn’t require it, is an established practice of the court which serves the interests of justice. I see no reason to depart from it in this matter.

9. It is clear that the record of appeal lacks the ruling sought to be appealed from, as admitted by Mr. Hamza. Is that failure sufficient to deny the appellants their day in the court of justice? I do not think so. Article 159 (1) of the Constitution provides that:-“(2)In exercising judicial authority, the courts and tribunals shall be guided by the following principles—(a)justice shall be done to all, irrespective of status;(b)justice shall not be delayed;(c)alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);(d)justice shall be administered without undue regard to procedural technicalities; and(e)the purpose and principles of this Constitution shall be protected and promoted. (emphasis added).

10. In the view of this court the applicant substantially complied with the previous directions of this court. In my view, this is a matter that calls for me to temper justice with mercy, consequently, I disallow the application and grant the appellants’ counsel 14 more days to file the Supplementary Record of Appeal.

11. In my view the above course of action does not prejudice the respondent.

12. Each party shall bear own costs.Orders accordingly.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 6TH DAY OF NOVEMBER 2023 VIA MICROSOFT TEAMS.GREGORY MUTAIJUDGEIn the presence of;Mr Hamza, for the Appellant;Mr Mwadzogo, for the Respondent; andMr. Arthur Ranyondo – Court Assistant.Page 2 of 3