[2024] KEHC 14462 (KLR)

Mulatia & another v Muthike (Civil Appeal E157 of 2023) [2024] KEHC 14462 (KLR) (21 November 2024) (Judgment)

Neutral citation: [2024] KEHC 14462 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E157 of 2023

H Namisi, J

November 21, 2024

Between

Ruth Musengya Mulatia

1st Appellant

Moses Simwa Kiguhi

2nd Appellant

and

Gregory Nzioka Muthike

Respondent

Judgment

1. This appeal arises from a suit filed by the Respondent against the Appellants for:i.General damages;ii.Special damages as per paragraph 6 of the Plaint;iii.Costs of the suit;iv.Interest from the date of filing the suit

2. The particulars of the suit are that on 27 May 2020, the Respondent was lawfully walking along Tom Mboya Street in Nairobi when the 1st Appellant’s motor vehicle registration number KCX 140B, which was being driven by the 2nd Appellant, knocked him down this occasioning the Respondent severe bodily injuries.

3. The Appellants entered appearance and filed a Statement of Defence denying the allegations by the Respondent.

4. The trial court presumably entered judgement against the Appellants. Having filed an incomplete Record of Appeal, I am unable to discern the award by the trial court. The Record does not contain the proceedings, judgement or decree from the trial court. I also do not have the benefit of the trial court file to peruse.

5. However, being aggrieved by the judgement, the Appellants lodged this appeal. Parties were directed to canvass the Appeal by way of written submissions. By the date of writing this judgement, only the Respondent had filed submissions.

6. First, I note that the Record of Appeal dated 23 August 2024 does not contain the judgement, decree or proceedings of the lower court. I also note that the Appellants have not appeared in court on several occasions.

7. That notwithstanding, I will address the issue of the incomplete Record of Appeal. Section 65(1) of the Civil Procedure Act forms the basis of appeals from the subordinate 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.

8. Order 42 Rule 13(4) of the Civil Procedure Rules provides 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).

9. Courts have severally dealt with the issue of incompleteness of the Record of Appeal. In Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others (2014) eKLR the Supreme Court stated 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(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.(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.

10. In Kakamega Election Petition Appeal No. 3 of 2018 Elvis Anyimbo Sichenga v Orange Democratic Movement & 4 Others (2016) eKLR the Court dealt with the same issue in an election petition appeal from the subordinate court. In that appeal the Record of Appeal did not include the decree of the judgment appealed against. The Learned Judge held as follows: -“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.”

11. The provisions of Order 42 Rule 13 (4) are clear. Whereas a Judge may dispense with the production of documents or part of documents, certain documents must be contained in the Record of Appeal for the same to be considered complete. These are: the Memorandum of Appeal, the pleadings and the Judgement, Order or Decree appealed from. This is not something that an Appellant can simply wish away. A complete Record of Appeal must be placed before the court to enable the court understand and appreciate the factual or legal controversies before it. Furthermore, despite the clear provisions on extension of time, and the numerous opportunities accorded to them to do so, the Appellant did not seek any extension of time to file a complete Record of Appeal. The very last document in the Record of Appeal is a letter dated 15th December 2022 to the Registry, requesting typed proceedings, certified copies of the judgement and decree.

12. I, therefore, find that the Record of Appeal is incomplete, hence the Appeal is incompetent. The appeal is, therefore, struck out with costs to the Respondent assessed at Kshs 40,000/=.

DATED AND DELIVERED AT NAIROBI THIS 21 DAY OF NOVEMBER 2024. HELENE R. NAMISIJUDGEDelivered on virtual platform in the presence of:Mr. Njuguna h/b Kabita .... for the AppellantsOdhiambo......... for the Respondent