[2022] KEHC 13597 (KLR)

Loopa & another (Suing as the legal representative of the Estate of Stephen Ng'ulia (Deceased)) v Technoplast Ltd (Civil Appeal E016 of 2021) [2022] KEHC 13597 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13597 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E016 of 2021

EM Muriithi, J

October 6, 2022

Between

Jackson Loopa

1st Appellant

Florence Kebo

2nd Appellant

Suing as the legal representative of the Estate of Stephen Ng'ulia (Deceased)

and

Technoplast Ltd

Respondent

Ruling

1. The appellants (the plaintiffs in the lower court) successfully obtained a judgement against the respondent, in a personal injury claim, in Isiolo CMC No. 38/2019. However, that judgement displeased them and they have approached this court vide a memorandum of appeal filed on 8/2/2021. Directions were taken that the said appeal be canvassed by way of written submissions, and the appellants filed their submissions on 4/11/2021. The respondent filed its submissions contemporaneously with a preliminary objection on November 22, 2021, on the ground that the appeal is incompetent for failure to attach the decree to the Record of Appeal.

2. The appellants, by their further submissions filed on December 14, 2021, urge that the provisions of Order 42 (13) 4) (f) do not make it mandatory for a certified decree to be in the record of appeal, as a certified copy of the judgement or Order would suffice, and rely on Elizanya Investments Limited v Lean Energy Solutions (2021) eKLR. They beseech the court, in the event that it finds otherwise, to permit them to file a supplementary record of appeal, in line with the provisions of Order 42 Rule 2 of the Civil Procedure Rules, section 1A and 1B of the Civil Procedure Act and Article 159(2) (d) of the Constitution.

Analysis and Determination 3. The issue for determination is whether the record of appeal is incompetent and ought to be struck out, for want of a certified decree. In my respectful, the position is varied depending on the particular court.

4. Order 42 Rule 2 of the Civil Procedure Rules, which applies to appeals to the High Court provides as follows:- “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 a time as the court may order, and the court need not consider whether to reject the Appeal summarily under Section 79B of Act until a copy is filed.”

5. Order 42, Rule 13 (4) (f) of the Civil Procedure 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).”

6. The Supreme Court of Kenya, in Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others [2015] eKLR held as follows at paragraph 41: “Without a record of appeal, a Court cannot determine the appeal cause before it. Thus, if the requisite bundle of documents is omitted, the appeal is incompetent and defective, for failing the requirements of the law. A Court cannot exercise its adjudicatory powers conferred by law, or the Constitution, where an appeal is incompetent. An incompetent appeal divests a Court of the jurisdiction to consider factual or legal controversies embodied in the relevant issues.”

7. In the Court of Appeal, the position is established in Chege v Suleiman [1988] eKLR that the issue of failure to attach the decree is a jurisdictional point, and held thus: “But we concur positively in the submission of Mr Lakha that this is not a procedural but a jurisdictional point. Those holdings were founded on a proper interpretation of section 66 of the Civil Procedure Act which confers a right of appeal from the High Court to this Court from “decrees and orders of the High Court”. And those holdings were predicated on the fact that since the appeal could only lie against a decree or order, no competent appeal could be brought unless those decrees or orders were formally extracted as the basis of the appeal.”

8. In Kilonzo David t/a Silver Bullet Bus Company v Kyalo Kiliku & another [2018] eKLR (J. Kamau J) held as follows: “12. Despite the provisions of Article 159 (2) (d) of the Constitution of Kenya, 2010 that mandates courts to administer justice without undue regard to procedural technicalities, this court took the firm view that omission to include the decree or order to be appealed from in the Record of Appeal was not a procedural technicality for the reason that the word “shall” in Order 42 Rule 2 of the Civil Procedure Act contemplates that the furnishing of the decree or order is mandatory and cannot be wished away.”

9. A perusal of the record of appeal shows that the appellants attached a copy of the judgment together with the certified copy of the lower court’s proceedings, but no certified decree. The appellants did not proffer any explanation why they did not attach a certified decree as is mandatorily required.

10. The contents of the Record of Appeal by Order 42 Rule 13 of the Civil Procedure Rules include judgment, order or decree appealed from. Indeed Order 42 Rule 2 provides that where a certified copy of decree or order is not filed, the court need not consider whether to reject the appeal summarily under section 79B of the Act until “such certified copy is filed.” Clearly, in the High Court, a certified copy of decree or order is a mandatory requirement the default of which may be cured by filing it in a supplementary record in accordance with Order 42 Rule 2 of the Civil Procedure Rules.

11. While the requirement of attaching a decree or order appealed from is not a technicality, in the spirit of Article 159 (2) (d) of the Constitution and the overriding objectives stated under Section 1A and 1B of the Civil Procedure Act, this court is mandated to consider the wider interests of substantial justice and there is no room the draconian decision to strike out the appeal for want of a certified decree, judgment or order in High Court appeals governed by Order 42 Rule 2 and 13 of the Civil Procedure Rules. It is my understanding that the samnction for failure to attach a decree or order in appeals to the High Court is not the striking oput of the appeal but the refusal to proceed to set down the appeal for hearing under Order 42 Rule 13 (4) of the Civil Procedure Rules until a certified copy is attached. The rule states that “before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record….”

Orders 12. Accordingly, for the reasons set out above, and in view of the provisions of Order 42 Rule 2 of the Civil Procedure Rules, the Court directs the appellants to file and serve a Supplementary Record of Appeal annexing the necessary documentation within fourteen (14) days from the date hereof, in default of which, the appeal shall stand dismissed.

13. Costs of the Application to abide the outcome of the appeal.

DATED AND DELIVERED THIS 6TH DAY OF OCTOBER, 2022. EDWARD M. MURIITHIJUDGEAPPEARANCES:M/S Simiyu Opondo Kiranga & CO. Advocates for the Appellant.M/S Mucheru Law LLP, Advocates for the Respondent.