[2024] KEHC 13216 (KLR)
The appeal was struck out because the appellants failed to file the mandatory documents required by Order 42 Rule 13(4) of the Civil Procedure Rules, specifically the trial court proceedings and judgment. Despite being granted multiple opportunities and extensions to comply, the appellants did not remedy the defect....
Source-derived case information.
- Citation
- [2024] KEHC 13216 (KLR)
- Parties
- Appellant: James Mubira Mwangi; Appellant: Moses Wambani; Respondent: Isaac Mutinda (Minor Suing through Father and Next Friend Boniface Amudala Isaya)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit E131 of 2021
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal struck out
- Judges
- JN Mulwa
- Legal Topics
- Record of Appeal Requirements, Appeal Striking Out, Mandatory Documents, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mubira Mwangi
Appellant
Moses Wambani
Appellant
Isaac Mutinda (Minor Suing through Father and Next Friend Boniface Amudala Isaya)
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal is competent in the absence of mandatory documents required under Order 42 Rule 13(4) of the Civil Procedure Rules.
- 2 Whether failure to file the trial court proceedings and judgment renders the appeal fatally defective.
Ratio Decidendi
The appeal was struck out because the appellants failed to file the mandatory documents required by Order 42 Rule 13(4) of the Civil Procedure Rules, specifically the trial court proceedings and judgment. Despite being granted multiple opportunities and extensions to comply, the appellants did not remedy the defect. The absence of these documents rendered the appeal incomplete and fatally defective, as the court could not properly determine the appeal without them. The Supreme Court precedent reinforced that omission of such documents makes the appeal incompetent. Accordingly, the court found no basis to allow the appeal to proceed and struck it out.
Court Disposition
appeal struck out
Orders
- The appeal is struck out for want of compliance with Order 42 Rule 13(4) of the Civil Procedure Rules.
- No order as to costs.
Full Case Text
Judgment text and source record
26 paragraphs
Mwangi & another v Mutinda (Minor Suing through Father and Next Fried Boniface Amudala Isaya) (Civil Suit E131 of 2021) [2024] KEHC 13216 (KLR) (Civ) (31 October 2024) (Judgment)
Neutral citation: [2024] KEHC 13216 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Suit E131 of 2021
JN Mulwa, J
October 31, 2024
Minor sung through father and next fried BONIFACE AMUDALA ISAYA…………………….……RESPONDENT
Between
James Mubira Mwangi
1st Appellant
Moses Wambani
2nd Appellant
and
Isaac Mutinda
Respondent
Minor Suing through Father and Next Fried Boniface Amudala Isaya
Judgment
1. The Record of Appeal dated 5/06/2023 was filed on 9/06/2023. However, the trial court proceedings had not been filed together with the Record of Appeal. On 17/10/2023 the Appellant sought to be granted 30 days to file a Supplementary Record which was granted.When the Appeal was listed for directions on 20/05/2024, the Appellant had not filed the Supplementary Record of Appeal upon which 21 days more were granted to the Appellant.
2. Despite the Appellants not having filed the Supplementary Record, the Appellant proceeded to file its written submissions dated 16/05/2024. The Respondent had not filed its submissions.
3. The court has perused the index to the Record of Appeal. Conspicuously missing are two crucial documents;a.The trial court proceedings in CMC’s case No. 5436 of 2019b.Judgment and Decree from the trial court case.
4. Order 42 Rule 13 (4) (f) of the Civil Procedure Rules provides a list of documents and pleadings that must be filed together with the record of appeal as follows:a.The Memorandum of Appeal;b.The Pleadings;c.The notes of 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:-ii.The judge may dispense with production of any document or part of a document, which is not relevant other than those specified in paragraphs (a), (b) and (f).
5. The Supreme Court of Kenya in the case of Bwana Mohamed Bwana & Silvano Buko Bonaya & 2 Others [2015]eKLR 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 incomplete and defective for failing the requirements of law…”
6. In the instant Appeal the Appellant has failed to file pleadings stated at (f) above despite numerous opportunities granted to file the said documents. It is therefore evident that the Appeal before this court is incomplete and therefore incomplete. It is struck out with no costs to the Respondent.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 31STDAY OF OCTOBER 2024. J. N. MULWAJUDGE