https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11044

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E439 OF 2023** **ESTHER WANGECHI MACHARIA……..…………….1ST APPELLANT** **MUYA MACHARIA DAVID……………………………..2ND APPELLANT** **MOSES NJOROGE…………………………………………3RD APPELLANT** **VERSUS** **MARY WAIRIMU KAMINDO……………………………..RESPONDENT** *(Being an Appeal from the judgement and decree* *of* *Hon. M.W. Murage Principal Magistrate* *delivered* *on 4th May, 2023 in Milimani CMCC No. 1677 of 2019 Mary Wairimu Kamindo v Esther Wangechi Macharia & 2 others).* **JUDGEMENT** 1. This appeal emanates from the judgement and decree of **Hon. M.W. Murage**, Principal Magistrate delivered on 4th May, 2023 in *Milimani CMCC No. 1677 of 2019 Mary Wairimu Kamindo v Esther Wangechi Macharia & 2 others.* 1. The grounds upon which the appeal is premised, as per the memorandum of appeal dated 26th May, 2023 are as follows: 1. **The learned Magistrate erred add misdirected herself when she failed to consider the Appellants’ submissions on points of law and fact.** 2. **That the learned Magistrate’s decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.** 3. **The learned Magistrate erred in fact and in law making an inordinate award of liability at 100% against the Appellants, general damages of Ksh.1,200,000/-, special damages of Ksh.5,385/- and future medical expenses Ksh.200,000/-.** 4. **The learned trial Magistrate erred in law and fact by failing to judiciously analyze the evidence on record and the Appellants’ submissions and authorities thereby arriving at a finding on quantum that was manifestly high, erroneous, untenable, unfair and unjust to the Appellants.** 5. **The learned trial Magistrate failed to consider conventional awards made in respect of cases of similar injuries thereby arriving at an excessive award.** 6. **The learned Magistrate erred in fact and in law in failing to appreciate the nature of injuries sustained by the Respondent and in so being (sic) arrived at an erroneous assessment of damages.** 2. The Appellants pray that the appeal be allowed with costs, that the judgement of the trial court be set aside and substituted with this Court's own determination, and that the costs of both the appeal and the proceedings before the trial court be awarded to the Appellants. 1. I have carefully perused the record of appeal and note that it does not contain the proceedings of the trial court or the judgement and decree appealed from. This omission is not a mere procedural lapse capable of being overlooked. Rather, it goes to the very competence of the appeal and the Court’s ability to discharge its appellate mandate. 2. *Order 42 Rule 13(4)* of the *Civil Procedure Rules* obligates the Court, before allowing an appeal to proceed to hearing, to satisfy itself that the record contains, among other mandatory documents, the notes or proceedings of the trial Magistrate, the pleadings, the documentary exhibits and the judgement, order or decree appealed from. The proceedings, judgement and the decree are therefore indispensable components of a competent record of appeal. 3. The omission of the proceedings is particularly grave in a first appeal. It is trite that a first appellate court is under a duty to reconsider and re-evaluate the evidence that was tendered before the trial court, draw its own conclusions, and bear in mind that it neither saw nor heard the witnesses testify. 4. That duty, as enunciated in ***Selle & Another v Associated Motor Boat Co. Ltd. & Others [1968] EA 123*** and consistently followed by our courts, cannot be discharged where the proceedings of the trial court are absent from the record. 5. Without the evidence that was placed before the trial court, this Court cannot ascertain the factual basis upon which the impugned findings were reached, test the merits of the grounds of appeal, or independently evaluate whether the conclusions reached by the trial court were justified. To do so would amount to speculation rather than adjudication. 6. Equally fundamental is the omission of the judgement and decree appealed from. The judgement contains the trial court’s findings and reasons, while the decree embodies the formal expression of that adjudication and is the decision from which an appeal lies. Without these documents, the appellate court is deprived of the very decision, together with the reasoning underpinning it, that it is invited to review. 7. The legal consequences of such omission have long been settled. In ***Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others [2015] eKLR,*** the Supreme Court emphatically held that where the requisite bundle of documents is omitted from the record of appeal, the appeal is incompetent and defective, and the Court lacks jurisdiction to determine the factual and legal controversies presented. 8. Likewise, in ***Chege v Suleiman [1988] eKLR,*** the Court of Appeal held that the absence of the decree is not a procedural irregularity but a jurisdictional defect because an appeal lies from a decree or order and not from a judgement in the abstract. 9. The same principle was reiterated by the Court of Appeal in ***Floris Pierro & Another v Giancarlo Falasconi (as the Administrator of the Estate of Santuzza Billioti alias Mei Santuzza) [2014] eKLR,*** where the Court observed that it is not the duty of an appellate court to comb through a the record in an attempt to decipher the formal decision of the court below. That decision must be embodied in the decree or order appealed from. 10. Similarly, in ***Emmanuel Ngade Nyoka v Kitheka Mutisya Ngata [2017] eKLR,*** the Court of Appeal underscored the mandatory nature of *Order 42 Rule 2* of the *Civil Procedure Rules* and the necessity of placing a certified judgement and decree before the appellate court before the appeal can properly be heard. 11. The High Court has faithfully applied these principles in, among other decisions, ***Lucas Otieno Masaye v Lucia Olewe Kidi [2022] eKLR*** and ***James Murage Nguyu v RNN (Minor Suing through Next Friend RNK) & Another [2021] eKLR,*** where appeals lacking the requisite documents were struck out for being incompetent. 12. I have previously had occasion to consider a substantially similar question in ***Mwangi & Another v Mwaniki (Suing as the Legal Representative of the Estate of Peter Maina Mwaniki (Deceased)) (Civil Appeal E124 of 2022) [2024] KEHC 7338 (KLR).*** In that matter, the record of appeal omitted the judgement and decree appealed from. Upon considering the foregoing authorities, I held that the omission rendered the appeal fatally defective and incapable of sustaining the appellate jurisdiction of the Court. I consequently struck out the appeal. 13. I have revisited that reasoning in light of the circumstances obtaining in the present appeal and find no basis for departing from it. 14. Indeed, the present appeal is attended by an even more serious defect. Besides the absence of the judgement and decree appealed from, the proceedings of the trial court have also not been included in the record. Consequently, this Court is deprived not only of the formal decision appealed against but also of the evidentiary foundation upon which that decision was reached. 15. In those circumstances, it is impossible for this Court to perform its statutory duty as a first appellate court of reconsidering the evidence, evaluating the findings of the trial court and determining whether the impugned decision can be sustained. 16. To entertain the appeal in the absence of these indispensable documents would be contrary to the *Civil Procedure Rules* and the binding authorities of the Supreme Court and the Court of Appeal. 17. Accordingly, and remaining of the same persuasion as I was in ***Mwangi & Another v Mwaniki*** (supra), I find that the record of appeal before this Court is incurably defective and that there is no competent appeal upon which this Court can exercise its appellate jurisdiction. 18. The appeal is hereby struck out with costs to the Respondent. 19. This file is hereby closed. DELIVERED (virtually), DATED & SIGNED this 9th day of July, 2026. **JOE M. OMIDO** **JUDGE** FOR APPELLANT: No appearance. FOR RESPONDENT: **Ms. Masika.** COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.**