https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12115

Maasai Bar & Restaurant v Kinya (Commercial Appeal E005 of 2025) [2026] KEHC 12115 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KEHC 12115 (KLR) Republic of Kenya In the High Court at Mombasa Commercial Appeal E005 of 2025 J Ngaah, J July 31, 2026 Between Maasai Bar & Restaurant Appellant and Karen Kinya Respondent (Being an appeal from the judgment of Hon. V. Muthoni (Resident Magistrate/Adjudicator) delivered on 18th February, 2025 in Mombasa Small Claims Court Case No. SCCCOMM/E1274/2024) Judgment 1.By a statement of claim filed on 22nd November, 2024 in the Small Claims Court at Mombasa, the respondent sought judgment against the appellant for Kshs. 991,240 said to be the value of groceries which she claimed to have supplied on credit to the appellant's chain of restaurants pursuant to an oral contract between the parties; she also prayed for damages for breach of contract, interest and costs. According to the respondent, orders for the supplies were placed by the appellant's employees, principally through a WhatsApp group known as 'Maasai Veges & Fruits', on the understanding that payment would be made upon the issuance of invoices. 2.The appellant denied the claim in its response filed on 16th December, 2024. It denied the existence of the alleged oral contract; it denied any nexus between itself and the various restaurant entities named by the respondent; it denied having received the goods allegedly supplied, contending that the respondent had not produced any stamped delivery notes or invoices; and it faulted the respondent for failing to tabulate how the sum claimed had accrued. 3.The claim proceeded to a hearing at which both parties tendered oral evidence and thereafter filed submissions. In a judgment delivered on 18th February, 2025, the learned trial magistrate found that an implied contract for the supply of groceries existed between the parties; that the appellant had been supplied with the goods set out in the statement of claim and had failed to pay for them; and that the respondent had discharged the burden of proof. Judgment was accordingly entered for the respondent against the appellant for Kshs. 991,240 together with interest from the date of judgment and costs. 4.Aggrieved by that decision, the appellant preferred the instant appeal by a memorandum of appeal dated 3rd March, 2025 in which it raised some fifteen grounds. In summary, the appellant faults the learned trial magistrate for drawing wrong inferences from the pleadings, evidence and submissions; for entertaining extraneous considerations; for relying on WhatsApp messages as proof of delivery of the goods; for finding the claim proved in the absence of endorsed delivery notes or a tabulation of the sum awarded; and for failing to consider the appellant's evidence and submissions. It urges that the judgment be set aside with costs. 5.When the appeal came up for directions on 30th July, 2025, the court directed that the record of appeal be admitted subject to the appellant availing a hard copy thereof to the court, and that the appeal be canvassed by way of written submissions. 6.In her submissions dated 12th September, 2025, the respondent stated that she had not, as at the date of filing those submissions, been served with any record of appeal and that it was only upon perusal of the court's electronic case management system that she was able to obtain a copy of the ninety-eight-page record filed by the appellant. Upon perusal of that record, she took, in limine, the point that the appeal is incompetent because the record of appeal contains neither a certified copy of the proceedings of the trial court nor the decree appealed from; it equally omits the respondent's own pleadings in the trial court. Invoking Order 42 rule 13(4) of the Civil Procedure Rules and the decision of the Supreme Court in Bwana Mohamed Bwana versus Silvano Buko Bonaya & 2 Others [2015] KESC 8 (KLR), she urged the court to down its tools and hold that, the record being incomplete, the appeal is incompetent and ought to be dismissed with costs; and, for that reason, she deemed it unnecessary to respond to the grounds raised in the memorandum of appeal. 7.The appellant did not respond to these submissions in kind. Instead, and in apparent reaction to them, it filed a notice of motion dated 19th January, 2026, lodged in court on 23rd January, 2026, expressed to be brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 rule 13 of the Civil Procedure Rules, seeking an order that the certified proceedings of the trial court annexed thereto be admitted and deemed as properly filed as part of the appellant's record of appeal. The application is supported by the affidavit of one John Forsthy, a director of the appellant, whose burden is that the appellant applied for the typed proceedings promptly upon delivery of the judgment but that the trial court delayed in availing them despite several follow-ups; the annexed proceedings were ultimately certified by the trial court on 19th December, 2025. It is worthy of note that the application is confined to the proceedings; it neither seeks nor says anything about the decree appealed from. It is equally worthy of note that the supporting affidavit does not disclose even the date of the judgment of the trial court, the relevant deposition reading only that judgment in the lower court “was delivered on [date of judgment]”. 8.Because the point taken by the respondent goes to the root of the appeal and, indeed, to the jurisdiction of this court to entertain it, it must be resolved at the threshold; for, as the Court of Appeal famously held in Owners of the Motor Vessel "Lillian S" versus Caltex Oil (Kenya) Limited [1989] KLR 1, jurisdiction is everything and without it a court has no option but to down its tools. 9.The respondent's complaint is borne out by the record. The record of appeal is dated 3rd March, 2025 and its index, dated 2nd April, 2025, lists, apart from the interlocutory documents accompanying it, the appellant's statement of address for service; the memorandum of appeal; the judgment delivered on 18th February, 2025; the notice of appeal; the parties' witness statements; the appellant's response to the claim; the appellant's submissions and authorities; and the respondent's further list of documents. A certified copy of the proceedings of the trial court is not among these documents; neither, and more fundamentally, is the decree appealed from. 10.The right of appeal which the appellant has sought to exercise is donated by section 38(1) of the Small Claims Court Act, No. 2 of 2016, which provides that a person aggrieved by a decision or an order of the Small Claims Court may appeal to the High Court on matters of law. The manner in which that right is to be exercised is, however, regulated by the Civil Procedure Act, Cap. 21 and the Civil Procedure Rules, the Small Claims Court being a subordinate court. In this regard, section 65(1)(b) of the Civil Procedure Act provides that appeals from subordinate courts to the High Court lie from the decrees or parts of decrees and from the orders of those courts. The appeal, properly so-called, is therefore not against the judgment of the trial court but against the decree drawn from that judgment. 11.A decree is defined in section 2 of the Civil Procedure Act as follows:“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… 12.The centrality of the decree to an appeal of this nature is underscored by section 79G of the Civil Procedure Act which prescribes the time within which such an appeal must be filed. It reads:“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.Two things are apparent from this provision. First, time for filing the appeal runs from the date of the decree or order appealed against and not from the date of the judgment; the decree is thus the very foundation of the appeal. Secondly, the period excluded from computation is the time certified by the lower court as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order; the provision necessarily presupposes that the appellant has applied for a copy of the decree, for the trial court cannot prepare and deliver to an appellant a document that has never been sought. 14.The requirement that the decree form part of the record of appeal is then made explicit by Order 42 rule 13(4) of the Civil Procedure Rules which provides as follows:“(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)." 15.It will be noted that while the court is vested with a discretion to dispense with the production of documents that are not relevant, that discretion does not extend to the documents specified in paragraphs (a), (b) and (f); the decree appealed from is, in other words, an indispensable component of the record of appeal. So too are the notes of the trial magistrate made at the hearing contemplated in paragraph (c), which, in the context of the instant appeal, are the proceedings of the trial court that the appellant has equally omitted from the record. 16.This court has pronounced itself on this question on more than one occasion. In Ndegwa Kamau t/a Sideview Garage versus Fredrick Isika Kalumbo, Nyeri High Court Civil Appeal No. 51 of 2013 [2016] eKLR, it was held, in circumstances on all fours with those of the present appeal, that:“Coming back to this appeal, 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…" 17.The respondent was, therefore, on firm ground in calling in aid the decision of the Supreme Court in Bwana Mohamed Bwana versus Silvano Buko Bonaya & 2 Others (supra). Although that decision was rendered in the context of rule 87 of the Court of Appeal Rules, the principle it enunciates is of general application to appellate proceedings. The apex court held that:“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." 18.Measured against these provisions and principles, the instant appeal cannot survive. The record of appeal contains no certified copy of the proceedings of the trial court and no decree; there is no certificate of delay; and, most tellingly, there is not even a suggestion anywhere in the record that the decree was ever sought or applied for from the trial court, let alone extracted and certified. 19.The appellant's notice of motion dated 19th January, 2026 does not, and cannot, salvage the appeal. To begin with, its timing speaks for itself: it was filed only after directions on the disposal of the appeal had been taken on 30th July, 2025 and, more significantly, after the respondent had drawn attention to the fatal omissions in her submissions of 12th September, 2025; it is, with respect, an afterthought provoked by those submissions rather than a genuine attempt to comply with the law. But even taking the application at its face value, it is unavailing for at least three reasons. First, it is not accompanied by any application for leave to file a supplementary record of appeal; there is, therefore, no procedural vehicle by which the proceedings, even if admitted, would become part of the record of appeal upon which this appeal falls to be determined. Secondly, the application is confined to the proceedings; it neither annexes nor seeks the admission of a certified copy of the decree appealed from. Thirdly, and as already observed, there is no evidence that the appellant ever applied for, or obtained, a certified copy of the decree; whatever indulgence the appellant pleads in respect of the delayed proceedings—a delay it attributes to the trial court—cannot extend to a document it never sought in the first place. An omission of that character cannot be cured by an application that does not even acknowledge it. 20.Without the decree appealed from, there is no valid appeal before this court, and the court is bereft of jurisdiction to interrogate the merits of the grounds raised in the memorandum of appeal, however attractive they might otherwise appear. The appeal is incompetent. 21.The upshot is that the notice of motion dated 19th January, 2026 is dismissed and the appeal herein is struck out with costs to the respondent. It is so ordered. SIGNED, DATED AND DELIVERED AT MOMBASA ON 31 JULY 2026NGAAH JAIRUSJUDGE