[2020] KEHC 5094 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MIGORI

[Coram: A. C. Mrima, J.]

CIVIL APPEAL NO. 51 OF 2019

BETWEEN

KENYA COMMERCIAL BANK LTD

FRED MOGAKA OKEMWA...............................APPELLANTS

AND

PILI VICTORIA...................................................RESPONDENT

(Being an appeal from the judgment by Hon. M. M. Wachira Senior Resident Magistrate in Migori Magistrate's Civil Suit No. 2417 of 2015 delivered on 14/03/2019

JUDGMENT

1. Pili Victoria, the Respondent herein, filed Migori Chief Magistrate’s Court Civil Suit No. 2417 of 2015 (hereinafter referred to as ‘the suit’) against Kenya Commercial Bank Ltdand Fred Mogaka Okemwa,the Appellants herein.

2. The suit was for damages in respect of injuries the Respondent sustained in a road traffic accident on 05/02/2014 involving the Appellants’ motor vehicle wherein the Respondent was a lawful fare paying passenger therein.

3. The suit was defended. It was also fully heard. On 14/03/2019 the trial court rendered a judgment. The suit was allowed. The Respondent was awarded damages at Kshs. 4,023,177/= together with costs and interests.

4. The Appellants were aggrieved by the judgment and preferred an appeal. They filed an evenly dated Memorandum of Appeal on 28/03/2019. A Record of Appeal was filed on 19/07/2019. The Appellants further filed a Supplementary Record of Appeal with the leave of the Court on 10/12/2019.

5. The Appellants preferred 5 grounds of appeal in challenging the assessment of damages by the trial court.

6. Directions were taken, and the appeal was disposed of by way of written submissions. Both parties duly complied.

7. As the first appellate Court, the role of this 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). This Court nevertheless appreciates that an appellate Court 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 Court is shown demonstrably to have acted on wrong principles in reaching the findings. This 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 certainly perused and understood the contents of the pleadings, proceedings, judgment, grounds of appeal, submissions and the decisions referred to by the parties.

9. I have come across an issue which was not raised by the parties but has a bearing on the competency of the appeal. It is whether a formal decree was extracted from the judgment and filed on appeal.

10. The lower court file was availed and I carefully perused it. I did not come across any decree extracted from the judgment in that file. Further, I did not come across any decree in the two records of appeal.

11. I will now deal with the effect of the absence of the decree in the records of appeal.

12. Section 65(1) of the Actis the basis of appeals from the surbodinate 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. 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 Rulesprovides 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.

14. 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).

15. 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.

16. 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.

17. 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.

18. 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. Before looking at what the Court said I will first reproduce the said Section.

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.

19. The Court of Appeal then 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.

20. 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.

21. 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 file the decree neither did it explain any difficulty in obtaining the decree.

22. The Record of Appeal is therefore incomplete. 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.’

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

Orders accordingly.

DELIVERED, DATED and SIGNED at MIGORI this 11th day of June 2020.

A. C. MRIMA

JUDGE

Judgment delivered electronically through: -

1. mmmadvocates13@gmail.com for Messrs. Mose, Mose & Millimo Advocates for the Appellants.

2. kerariom@gmail.com for Messrs. Kerario Marwa & Company Advocates for the Respondent.

3. Parties are at liberty to obtain hard copies of the judgment from the Registry upon payment of the requisite charges.

A. C. MRIMA

JUDGE