[2019] KEHC 5451 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

HCCA NO. 29 OF 2017

NANCY JEPTOO LESSONET..................................................APPELLANT

=VERSUS=

DAVID KIPROP KOGEI..................................................1ST RESPONDENT

ZAKAYO KERICH..........................................................2ND RESPONDENT

[An appeal from the Judgment and Decree of the Principal Magistrate’s Court at Eldama Ravine RMCC No. 8 of 2011 delivered on the 20th day of June, 2017 by Hon. R. Yator, SRM]

RULING

1. This is an application for orders for the striking out of the appeal as follows:

1) THAT this Honourable Court be pleased to strike out the Record of Appeal dated 21st November 2017 and filed in Court on 15th February 2018 and summarily dismiss this Appeal being incompetent.

2) THAT this Honourable Court do make any such further Order(s) and issue any other relief it may deem just to grant in the interest of justice.

3) THAT the costs of this Application be borne by the Appellant.

2. The application is based on grounds set out as follows:

1) THAT on 17th August 2017, the Respondents were served with the Appellant’s Memorandum of Appeal dated 14th July 2017 and filed on 17th July 2017 challenging the trial Court Judgment on the issues of Liability and Quantum.

2) THAT further on the Respondents were served with the Appellant’s Record of Appeal dated 21st November 2017 and filed on 15th February 2018.

3) THAT upon perusal of the said Record of Appeal, the Respondents realized that crucial documents are missing from the record and thus rendering the Appeal incompetent.

4) THAT it is in the interest of justice that the Appeal be struck for want of compliance with the relevant provisions of the law and therefore incompetent.

5) THAT this Application has been made expeditiously without any unreasonable delay.

6) THAT it is in the interest of justice, equity and fairness that this Application be allowed as prayed.

3. The principal reason for the application to strike out the appeal is set out in paragraph 5 of the Supporting Affidavit of the Counsel for the Respondent Mr. Allan Odoyo as follows:

“That I am aware that the appellant filed the Record of Appeal dated 21st November 2017 on 15th February 2018 which is incompetent for lack of crucial documents mainly pleadings, Decree, written submission and thusought to be summarily struck out (Annexed hereto and marked ‘AOI’ is the list of index of the Record of Appeal).”

4. Counsel for the Applicant relies on Order 42 Rule 13 (4) of the Civil Procedure Rules which is in the following terms:

13. Directions before hearing

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 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).

3. With respect under the Civil Procedure Rules, there is no express power to strike out an appeal for failure to include necessary documents. The power is for giving directions as to inclusion of these documents, and the Court may delay the consideration of the appeal for purposes of giving dismissal under section 79 B or for proceeding to hearing until the necessary documents are availed. Rule 2 and 13 (3) of the Order 42 are clear in this regard providing as follows:

Filing of decree or order

2. 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 time as the court may order, and the court need not consider whether to reject the appeal summarily undersection 79Bof the Act until such certified copy is filed.

13. Directions before hearing

3. The judge in chambers may give directions concerning the appeal generally and in particular directions as to the manner in which the evidence and exhibits presented to the court below shall be put before the appellate court and as to the typing of any record or part thereof and any exhibits or other necessary documents and the payment of the costs of such typing whether in advance or otherwise.

5. The position was different in the Court of Appeal under the Court of Appeal Rules 1972, which has expressed provisions for the striking out of appeals as follows:

80. A person affected by an appeal may apply to the Court to strike out the notice of appeal or the appeal, as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time.

Provided that an application to strike out a notice of appeal of an appeal shall not be brought after the expiry of thirty (30) days from the date of service of the record of appeal on the respondent.

This is the context of the Court of Appeal decision Abdi Nassir Nuh v. Abduleheman Hassan Halkano & 2 ors. (2010) eKLR, which struck out an appeal to the Court for failure of appellant to include in the Record of Appeal, the trial Judge’s notes for the hearing in accordance with Rule 85 (2A) of the Court of Appeal Rules, 1972, (now repealed by L.N 152 of 2010 (Court of Appeal Rules 2010).

6. In Ndegwa Kamau t/a Side View Garage v. Fredrick Isika Kalumbo (2016) eKLR, the High Court rejected an appeal where a certified copy of the Decree appealed from had not been sought “let alone filing it is part of the record.” The Court relied on the Court of Appeal decision in Kyuma v. Kyema (1988) KLR 185.

7. The Appellant submitted that the application to strike out the appeal was punitive having been brought before directions on the appeal are taken before the judge in terms Order 42 Rule 13 of the Civil Procedure Rules and cites the High Court decisions in Kirinyaga General Machinery v. Hezekiel Mureithi (2003 eKLR, KP&LC Ltd v. Quentine Wambua t/a Bondeni WholesalersMachakos HCCA 16 of 2013 and Gateway Insurance Co. Ltd v. Simion Gakuru Nakuru HCCA 195 of 2005 for his submission that “an appeal cannot be dismissed for want of prosecution or be struck out before directions are taken and that the procedure of dealing with an appeal where directions have not been taken is contemplated under Order 42 Rule 35 (1) and 35 (2) respectively”

8. The appellant did not file a Replying Affidavit to the application for striking out of the appeal and it is not clear whether the appellant has obtained a formal decree in the matter.

Determination

9. With respect, the appellant’s submission as regards the non-dismissal of appeals before directions are taken before a Judge is relevant only in relation to dismissal for want of prosecution under Order 42 Rule 35 of the Civil Procedure Rules, which is not an issue in the present application.

10. Even at the Court of Appeal, the modern legal dispensation as regard the record of appeals and competency of appeals is, consistently with Article 159 principle of substantial justice, less reverent of strict rules on the contents of the Record, and allowance is given for parties to an appeal to file Supplementary Record of Appeal to include necessary documents under Rules 88 and 92 of the Court of Appeal Rules 2010 as follows:

88. Where documents are omitted from the record of appeal

Where a document referred to in rule 87(1) and (2) is omitted from the record of appeal theappellant may within fifteen days of lodging the record of appeal, without leave, include the document in a supplementary record of appeal filed under rule 92(3) and thereafter with leave of the deputy registrar on application.

92. Preparation and service of supplementary record

3. An appellant may at any time lodge in the appropriate registry four copies of a supplementary record of appeal and shall as soon as practicable thereafter serve copies of it on every respondent who has complied with requirements of rule 79.

11. The Court, therefore, rejects the respondent applicant’s submission that failure to indicate the certified copy of decree and trial Court’s notes is fatal to the appeal.

12. The High Court under Order 42 Rule 13 (3) of the Civil Procedure Rules may give directions covering the appeal generally and under Rule (2) may extend the time within which a certified copy of the decree or order appellant from is to be filed. Indeed, in the decision relied on by the High Court in the Ndegwa Kamau case, supra, the High Court had granted an extension of time whose terms the appellant had failed to comply with prompting the Judge to strike out the appeal. The Court of Appeal significantly held:

2. An appellant is required, within thirty days from the date of the decree or order or within a period extended by a certificate of delay, to file a Memorandum of Appeal in the prescribed form and a copy of the formal order of the Court, if available. Under the Civil Procedure Rules order 41 rule 1A, the latter document can be filed as soon as possible and in any event within such time as the Court may order.

6. The appellant could only file a competent appeal if the Court granted him an extension of time. Since such extension was granted on terms and the appellant failed to comply with the terms, the Judge was entitled to strike out the appeal. The Judge was also right in finding that there was no pending appeal on which he could grant an injunction.

Kyuma v. Kyema[1988] KLR 185.

13. Accordingly, for the reasons set out above, the Court finds the application for striking out of the appeal herein to be misconceived in view of the provisions of Order 42 Rules (2) and 13 (3) of the Civil Procedure Rules. The appeal shall be set for directions for hearing on a date convenient to the parties at which stage directions as to the filing of the decree and any other necessary documents may, in accordance with the Rules, be made.

14. Costs in the cause.

Order accordingly.

DATED AND DELIVERED THIS 9TH DAY OF JULY 2019

EDWARD M. MURIITHI

JUDGE

Appearances:

M/S Kipkenei & Co. Advocates for the Appellant.

M/S Kairu & Co. Advocates for the Respondents.