[2025] KEHC 3912 (KLR)
The High Court found that the record of appeal was incomplete, as the impugned judgment was not included and the attached proceedings related to a different case number. Without the necessary documents, the court could not properly adjudicate the appeal. Consequently, the appeal was found to be incompetent and was...
Source-derived case information.
- Citation
- [2025] KEHC 3912 (KLR)
- Parties
- Appellant: Benson Ndung’u; Appellant: Simon Mwangi Wanjeri; Respondent: Joseph Ndung’u Mburu
- Court
- High Court
- Court Station
- High Court at Nyandarua
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 113 of 2023
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed as incompetent with costs to the respondent
- Judges
- KW Kiarie
- Legal Topics
- Appeal Incompetence, Record of Appeal, Assessment of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Ndung’u
Appellant
Simon Mwangi Wanjeri
Appellant
Joseph Ndung’u Mburu
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal is competent in light of the incomplete record of appeal and missing impugned judgment.
- 2 Whether the trial magistrate erred in the assessment of damages awarded to the respondent.
Ratio Decidendi
The High Court found that the record of appeal was incomplete, as the impugned judgment was not included and the attached proceedings related to a different case number. Without the necessary documents, the court could not properly adjudicate the appeal. Consequently, the appeal was found to be incompetent and was dismissed with costs to the respondent.
Court Disposition
appeal dismissed as incompetent with costs to the respondent
Orders
- The appeal is dismissed as incompetent.
- The appellants shall pay the costs of the appeal to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
Ndung’u & another v Mburu (Civil Appeal 113 of 2023) [2025] KEHC 3912 (KLR) (Civ) (27 March 2025) (Judgment)
Neutral citation: [2025] KEHC 3912 (KLR)
Republic of Kenya
In the High Court at Nyandarua
Civil
Civil Appeal 113 of 2023
KW Kiarie, J
March 27, 2025
Between
Benson Ndung’u
1st Appellant
Simon Mwangi Wanjeri
2nd Appellant
and
Joseph Ndung’u Mburu
Respondent
(Being an Appeal from the judgment and decree in Engineer Principal Magistrate’s PMCC No. 189 of 2016 by Hon. D.N. Sure – Resident Magistrate)
Judgment
1. Benson Ndung’u and Simon Mwangi Wanjeri, the appellants, were the defendants in Engineer Principal Magistrate’s PMCC No. 189 of 2016. They had been sued for a claim of general damages and special damages following a road traffic accident involving motor vehicle registration number KCD 562U and motor vehicle registration number KBV 626Z. The respondent was a passenger in a motor vehicle registered as KCD 562U. As a result of the collision, the respondent sustained fatal injuries. The respondent was awarded Kshs. 1,300,00. 00 in general damages Kshs. 80,000. 00 for future medical expenses and Kshs. 61, 515. 00 special damages (as it appears in the submissions).
2. The appellant was aggrieved by the judgment and filed this appeal through Murimi Ndumia, Mbago & Muchela Advocates. They raised the following grounds of appeal:a.That the learned trial magistrate erred and misdirected herself as to the exact nature of the respondent’s injuries and, therefore, erred in law in his assessment of damages awardable to the respondent, which was manifestly excessive.b.That the learned trial magistrate erred in assessing damages and failed to apply the principles applicable in the award of damages and comparable awards made for analogous injuries.
3. The respondent opposed the appeal through P. K. Njuguna & Company Advocates.
4. This Court is the first appellate court. I recognize my duty to assess all the evidence on record, considering that I did not have the advantage of observing the witnesses testify and noting their demeanour. I will be guided by the decision in the case of Selle vs Associated Motor Boat Co. Ltd. [1965] E.A. 123, in which it was held that the first appellate court must reconsider and evaluate the evidence presented before the trial court, assess it, and draw its conclusions in the matter.
5. The record of appeal is incomplete. The impugned judgment is not part of it. Apart from the incomplete record, the attached proceedings concern Civil Case Number 190 of 2016, whereas the appeal pertains to PMCC No. 189 of 2016. This court will be unable to adjudicate this appeal.
6. The appeal is incompetent and is dismissed with costs.
DELIVERED AND SIGNED AT NYANDARUA THIS 27THDAY OF MARCH 2025KIARIE WAWERU KIARIEJUDGE