[2014] KEHC 2730 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CIVIL APPEAL NO. 91 OF 2013

MILLIGAN HERITAGE LTD...…………………….1ST APPELLANT

CHARLES K. KANG’ETHE…………………….…..2ND APPELLANT

VERSUS

ANTHONY M.MWAURA……..……..…………………RESPONDENT

(Being an appeal from the judgment of the Kigumo Senior Resident Magistrates Court (Hon. M.W. Mutuku delivered on 26th June, 2010 in Civil Suit No. 80 of 2010)

JUDGMENT

The appeal herein is against a judgment of the subordinate court at Kigumo according to which the respondent was awarded damages of up to Kshs. 680,150/= made up of pain and suffering, loss of expectation of life, loss of dependency and special damages and general damages for pain and suffering subject to 10% contribution. The respondent was also awarded costs of the suit and interest thereof.

The suit out of which these damages and costs were awarded was occasioned by a road traffic accident involving the 1st appellant’s motor vehicle registration number KAZ 823Z (herein “the vehicle”)and the respondent’s daughter who, unfortunately, was fatally injured in the accident; the accident is said to have occurred along Murang’a-Kenol Road on 2nd March, 2008 and, at the material time, the vehicle in issue was being driven, managed and/or controlled by the 2nd Appellant in his capacity as the 1st appellant’s driver, servant and/or agent.

The suit was instituted by the father and administrator of the estate of Millicent Wanjiku Murigi (deceased) for the benefit of the deceased’s estate under the Law Reform Act, Cap 26 and for his own benefit under the Fatal Accidents Act, Cap 32.

The appellants were dissatisfied with the learned magistrate’s decision and on 21st March, 2011 they lodged an appeal against the judgment faulting it on several grounds amongst of which were that there was no basis for apportionment of liability for the accident at the ratio of 90:10 against the appellants; that there was no rationale for holding the appellants negligent; and that the learned magistrate failed to appreciate the evidence as presented at the trial.

Counsel for the respective parties consented to have the appeal determined by way of written submissions which I have duly considered.

One issue which, in my humble view, should be considered as a preliminary point in the determination of this appeal is whether there is indeed a competent appeal before court. Though none of the parties’ counsel addressed this issue in their respective submissions, the question whether an appeal before court is competent or not is such a fundamental issue that it would be dereliction of duty if the court was to sweep it the under the rug.

My main concern with the appellants’ appeal is that the record of appeal does not contain a copy of the decree appealed from; there is no evidence from that record that it was even applied for. The question that then arises is whether failure to include the decree in the record and comply with section 79G of the Civil Procedure Actas readOrder 42 Rule 1(2) and Rule 13(4) of the Civil Procedure Rules renders an appeal incompetent. This question can be adequately answered by looking closely at these provisions of the law.

In my judgement in Civil Appeal No. 127 of 2013, Joseph Kamau Ndung’u & Another versus Peter Kaunga Kamau I attempted to analyse these provisions relatively extensively; I begun with section 79Gof the Act which is to the effect that:-

79G. 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 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.

I noted in my judgment that under this provision of the law, a decree or order appealed from is a pertinent and an inextricable part of an appeal filed in the High Court from a decision of the subordinate court; without the decree or order appealed from there is, in effect, no appeal. In my humble view, it is for this reason that section 79G provides a window for extension of time to file the appeal if the decree or order could not, for one reason or another, be secured within the limitation period. It therefore follows that the preparation and delivery of the decree or order for the purpose prescribed in section 79G of the Act is a mandatory requirement without which no legitimate appeal can be said to have been lodged in the High Court against a decision of the subordinate court.

The Civil Procedure Rules are consistent with this statutory requirement; Order 42 rule 2 of the Civil Procedure Rulesis clear that:

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 the court may order, and the court need not consider whether to reject appeal summarily under section 79B of Act until copy is filed.

In my judgment in Joseph Kamau Ndung’u & Another versus Peter Kaunga Kamau (supra) I noted that this rule envisages a situation where the appellant is set to lodge his memorandum of appeal but the order or the decree appealed against has not, in the words of section 79G of the Act, been prepared and delivered; in that case the memorandum of appeal may be filed but the filing of the order or the decree must follow at the earliest opportunity possible or within such a time that the court may direct. It would, therefore, be reasonable to conclude that without the order or the decree appealed against, the appeal would be incomplete.

On its part, Order 42 Rule 13(4)of the Rulesis also categorical that the record of appeal will not be complete without the decree or order appealed against; it provides:

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:

The memorandum of appeal;

The pleadings

The notes of the trial magistrate made during the hearing;

The transcript of any official shorthand, typist notes, electronic recording or palantypist notes made at the hearing;

All affidavits, maps and other documents whatsoever put in evidence before the magistrate;

The judgment, the order or decree appealed from, and, where appropriate, the order(if any) giving leave to appeal:

Provided that-

a translation into English shall be provided of any document not in that language;

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).

Under this rule, more particularly part f (ii) thereof although a judge has discretion to dispense with certain documents, he cannot dispense with an order or decree appealed from; they are primary and therefore mandatory documents that must form part of the record.

These provisions were comprehensively considered when this question of compliance or non-compliance with section 79G of the Act arose in the case of Kyuma versus Kyema (1988) KLR 185. In that case the applicant was caught out by time such that he could not file his appeal against orders issued by the magistrate’s court without extension of time. He had applied for a “certified copy of the proceedings and judgment/orders”. He ultimately got the certified copies of the proceedings and judgment and was also issued with a certificate of delay that certified the period required to prepare the proceedings and the judgment; apparently, it is the delay in preparation and delivery of these documents that occasioned the delay in filing of the applicant’s appeal.

When the appellant filed his appeal, the learned judge (Shields J, as he then was) held that the certificate of delay which was filed with the appeal was not the one contemplated under section 79G of the Act 21. He struck out the appeal and when the appellant appealed to the Court of Appeal, the latter upheld the High Court’s judgment and said at page 187:

The appellant was entitled to appeal to the High Court against these orders if he felt aggrieved by them. Section 65(1) of the Civil Procedure Act confers a right of appeal on him. But in order to set on foot a competent appeal, the appellant must have filed his appeal within thirty days from the date of the order…This period may be extended provided he obtained from the magistrates court a certificate of delay within the meaning of section 79G of Act 21. The section allows the thirty days to be extended by such period as was required to make a copy of the “decree or order of the court”. As the appeal was to be filed beyond the 30 days prescribed by the rules, the appellant ought to apply and file with the memorandum of appeal, not only the order of the court, but also a certificate of delay. (Underlining mine).

The relevance of the court’s pronouncement to this appeal is the emphasis that whenever one intends to file an appeal under section 79G it is incumbent upon the intended appellant to apply for an order or a decree which he will file together with the memorandum of appeal; apart from the memorandum of appeal and the decree, the applicant must obtain and file a certificate of delay certifying the time taken to prepare and deliver the order or the decree should his appeal be filed outside the 30 day time limit. The court explained this better in its judgment. It said at page 189:

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”.

Rule 1A of Order 41 which the court referred to in its judgment is now rule 2 of Order 42of theCivil Procedure Rules, 2010.

Coming back to the appellants’ appeal, there is no evidence the appellants ever applied for the decree, in any manner whatsoever.

In view of the mandatory provisions of section 79G of the Civil Procedure Act as read Order 42 Rule 1(2) and Rule 13(4) of the Civil Procedure rules and in view of the decision of the Court of Appeal in the Kyuma versus Kyema (supra) by which I am bound, it is apparent that the appeal herein is incompetent and for this reason it is hereby struck out with costs.

Signed, dated and delivered in open court this 6th day of October 2014

Ngaah Jairus

JUDGE