Kamau & another v Kaluki (Civil Appeal E1258 of 2023) [2026] KEHC 10817 (KLR) (16 July 2026) (Judgment)

Kamau & another v Kaluki (Civil Appeal E1258 of 2023) [2026] KEHC 10817 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10817 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Appeal E1258 of 2023 BW Murunga, J July 16, 2026 Between Mercy Wairimu Kamau 1st Appellant Paul Ngatia 2nd Appellant and Dorcas Kaluki Respondent (Being an appeal from the judgment of Hon. Selina Muchungi, Senior Resident Magistrate, delivered on 7th October 2022 in Milimani Chief Magistrate's Court Civil Suit No. 554 of 2018) Judgment A. Introduction 1.This appeal turns, in the first instance, not on the familiar battlegrounds of negligence and quantum that the Memorandum of Appeal frames, but on a threshold question that both parties have, in their different ways, put before a court that has still to see the very document under attack: is the Record of Appeal filed in this matter one on which an appeal can lawfully be determined at all? Only once that question is resolved does it become necessary, or even possible, to ask whether the trial magistrate erred in holding the 2nd Appellant liable for the road accident of 16th June 2017, or in placing a value of Kshs. 200,000/= on the injury the Respondent sustained. B. Background 2.The Respondent, Dorcas Kaluki, was the plaintiff in Milimani CMCC No. 554 of 2018. By a plaint dated 22nd January 2018, she pleaded that on or about 16th June 2017 she was lawfully walking along Bus Station within Nairobi when motor vehicle registration number KCC 417H, then registered in the name of the 1st Appellant and driven by the 2nd Appellant as her authorised driver, servant and/or agent, was managed and driven so carelessly and negligently at high speed that it veered off the road and collided with her, causing her a swollen, tender and painful sprain of the left foot. 3.Her Statement of Issues, the P3 form, the medical report of Dr. G.K. Mwaura, the treatment summary from Akshar Health Care Limited and the police abstract each speak to the same left-foot injury. 4.She was placed on a plaster of Paris for four weeks and put on analgesics, with the treating physician describing healing as “fair” but noting continuing pain on exertion. She claimed general damages, special damages of Kshs. 3,550/= (Kshs. 3,000/= for the medical report and Kshs. 550/= for copies of records), costs and interest. 5.The Appellants entered appearance and, by a statement of defence dated 3rd February 2022, denied ownership, agency and negligence, and pleaded in the alternative that the Respondent had contributed to her own misfortune by, among other things, failing to keep a proper lookout and walking carelessly on the road. 6.The Court cannot resist noting, in passing, an inconsistency that appears to have escaped both counsel. The certified National Transport and Safety Authority record placed before the trial court describes KCC 417H as a Hino WU720R bus/coach licensed to carry 33 passengers and registered to the 1st Appellant. 7.The Respondent’s own written submissions at trial, however, describe the same registration number as “the subject motor cycle” allegedly “rode” by the 2nd Appellant. Neither party drew the trial court’s attention to the discrepancy, and it does not appear to have featured in the disposal of the suit; it is recorded here only because it foreshadows a wider concern, to which the Court returns below, about the care with which this file has been assembled. 8.The suit proceeded to hearing before the trial magistrate on 1st August 2022. The Respondent testified in person, adopting her recorded witness statement and producing the exhibits referred to above, after which she closed her case. The Appellants elected not to call the 2nd Appellant, or any other witness, and closed their case without tendering a word of evidence. The Respondent’s advocates then filed written submissions dated 10th August 2022 urging an award of Kshs. 400,000/= in general damages. No written submissions by the Appellants appear anywhere on the record. 9.By a judgment delivered on 7th October 2022, the trial court found for the Respondent and entered judgment for Kshs. 200,000/= in general damages and Kshs. 3,550/= in special damages, together with costs and interest. That judgment, the decree said to flow from it, and the typed record of the evidence summarised above are, as will become apparent, notably absent from the Record of Appeal this Court has been asked to determine the appeal upon. C. The Appeal 10.Aggrieved, the Appellants sought and obtained, on 14th November 2023, leave of Mulwa, J. in Nairobi HCC Miscellaneous Application No. E403 of 2023 to appeal out of time. They lodged a Memorandum of Appeal dated 17th November 2023 raising five grounds, namely that the trial magistrate erred in fact and in law:a.in finding that the Respondent had proved the pleaded injuries on a balance of probability;b.in finding that the Respondent was entitled to a decretal award of Kshs. 200,000/=;c.in finding that the damages awarded were, in view of the evidence tendered, too high;d.in failing to consider the Appellants’ submissions on quantum; ande.in failing to consider conventional awards made in cases of a similar nature. 11.The Appellants prayed that the appeal be allowed with costs, that the judgment of 7th October 2022 be set aside, that the award be re-assessed, and that the costs of the appeal be borne by the Respondent. D. Submissions 12.The Respondent filed written submissions on 21st August 2025. Her first and, on her case, decisive submission is that the appeal is incompetent for want of a complete Record of Appeal, relying on the Supreme Court's decision in Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others [2015] eKLR. 13.In the alternative, on liability, the Respondent submits that the Appellants called no witness at trial, that her evidence therefore stood unchallenged, and that the finding on liability should accordingly be upheld, relying on Felix Odiwuor Aluoch t/a Rescue Bookshop v Modern Coast Couriers Limited [2020] eKLR. 14.On quantum, the Respondent submits that the award of Kshs. 200,000/= was justified, relying on Mara Tea Factory Limited v Lillian Bosibori Nyandika [2021] eKLR and Anthony Nyamwaya v Jackline Moraa Nyandemo [2022] eKLR as comparable awards, and urging that an appellate court defer to a trial court's exercise of discretion absent proof that a wrong principle was applied, relying on Franklin Maingi Nkunja v Rose Mutuma & another [2021] eKLR and, through it, Catholic Diocese of Kisumu v Sophia Achieng Tete, Civil Appeal No. 284 of 2001 [2004] 2 KLR 55. 15.The Appellants did not file written submissions in prosecution of their own appeal. Their case, as it stands before this Court, is confined to the five grounds and the prayers set out in the Memorandum of Appeal. E. Issues for Determination 16.Four issues arise for determination;a.whether the Record of Appeal, as constituted, is competent for determination by this Court;b.if it is, whether the trial court erred in its finding on liability;c.if it is, whether the trial court erred in its assessment of general damages; andd.what orders should follow. F. Analysis (i) Competence of the Record of Appeal 17.An appeal from a subordinate court to this Court is not a fresh proceeding commenced by the filing of a memorandum of grievances; it is a statutory creature, governed by sections 65 to 80 of the Civil Procedure Act (Cap 21) and Order 42 of the Civil Procedure Rules, 2010, and it must take the form the law prescribes. 18.Order 42 rule 13(4) of the Civil Procedure Rules, read together with paragraph 14 of the Practice Directions on Standardisation of Practice and Procedure in the High Court, 2022, requires that a record of appeal in a civil matter contain, among other things, the pleadings, the certified typed record of the entire proceedings before the trial court, the judgment, and the lists of exhibits and witnesses. 19.That requirement is no empty formality. This Court sits, on a first appeal from a subordinate court, under the well-known duty explained in Selle & another v Associated Motor Boat Co Ltd & others (1968) EA 123, where the former Court of Appeal for Eastern Africa held that such an appeal proceeds by way of a retrial on the record, and that "this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses.”A court cannot reconsider and evaluate evidence it has never been shown, nor test a magistrate's reasoning against a judgment it has never read. 20.It is against that backdrop that the Supreme Court, in Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others [2015] eKLR, described the record of appeal, adopting its own earlier holding in Law Society of Kenya v Centre for Human Rights & Democracy & 12 others, Supreme Court Petition No. 14 of 2013, as“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.” 21.The Supreme Court went on to hold, in terms this Court respectfully, that “if the requisite bundle of documents is omitted, the appeal is incompetent and defective, for failing the requirements of the law,” and that “an incompetent appeal divests a Court of the jurisdiction to consider factual or legal controversies embodied in the relevant issues.” 22.That holding, in those two succinct quotations from the apex Court, binds this Court under Article 163(7) of the Constitution. 23.Measured against that yardstick, the Record of Appeal now before the Court cannot pass muster. It contains no typed record of what the Respondent said in the witness box or under cross-examination, no record of what, if anything, was put to her, and most tellingly no copy, certified or otherwise, of the very judgment the Appellants ask this Court to set aside, nor of the decree said to flow from it. 24.Ground 1 complains that the trial magistrate erred in finding the injuries proved on a balance of probability; ground 3 complains that she erred in finding the damages “too high in view of the evidence tendered.” Both grounds invite this Court to sit in judgment on findings of fact, and an exercise of reasoning, that it has literally never seen. 25.The Court has considered whether this is a mere technicality that Article 159(2)(d) of the Constitution which enjoins courts to administer justice without undue regard to procedural technicalities ought to excuse. I do not think so. Article 159(2)(d) speaks to form; it cannot supply this Court with the substance of a judgment it has not been shown, nor manufacture a record of proceedings that were never transcribed and filed. A litigant is entitled to insist that procedural technicality yield to substantive justice; a court is not thereby relieved of the jurisdictional prerequisite that it actually be placed in possession of the decision under review. 26.Nor can the omission be excused as simple, curable delay attributable to the trial court’s registry. The three letters exhibited at pages 34 to 36 of the record show real diligence between October 2023 and April 2024. They do not, however, show what happened next. No application was made to this Court, at any point in the sixteen months between the lodging of the Record of Appeal on 26th April 2024 and the filing of the Respondent’s submissions on 21st August 2025, to compel production of the outstanding documents, to extend time for their filing, or to file a supplementary record once obtained. 27.Order 42 rule 2 of the Civil Procedure Rules contemplates precisely such an application where a decree has not been filed with the memorandum of appeal, but it is a facility that must be invoked; it does not operate of its own accord, and it was never invoked here. 28.For these reasons, the Court is satisfied that the Record of Appeal is fatally defective, that the appeal as constituted is incompetent, and that this finding, standing alone, disposes of the appeal. Consistently with Bwana v Bonaya, that finding also deprives the Court of jurisdiction to pronounce a binding determination on liability or quantum. G. Disposition 29.For the foregoing reasons, the Court finds that the Record of Appeal filed on 26th April 2024 is fatally defective for want of the certified typed proceedings, the judgment and the decree required by Order 42 rule 13(4) of the Civil Procedure Rules, 2010 and paragraph 14 of the Practice Directions on Standardisation of Practice and Procedure in the High Court, 2021, and that Civil Appeal No. E1258 of 2023 is, in consequence, incompetent. 30.The following orders shall issue:a.The appeal is dismissed for being incompetent.b.The judgment and decree of the Chief Magistrate's Court, Milimani, in CMCC No. 554 of 2018 delivered on 7th October 2022 stand undisturbed.c.The costs of this appeal are awarded to the Respondent.d.This order is without prejudice to such application, if any, as the Appellants may be advised to bring, upon a proper record, for such further or other relief as they may be entitled to in law.Orders accordingly. DATED, SIGNED AND DELIVERED AT Nairobi THIS 16th DAY OF July 2026.……………………………………………………BENARD WAFULA MURUNGAJUDGEDelivered on a virtual platform in the presence of:Kabita h/b for Morara for the Appellants (instructed by Kimondo Gachoka & Co. Advocates)Ms. Kisiangani for the Respondent (instructed by Waiganjo Wachira & Co. Advocates)Kevin Babu - Court Assistant