[2023] KEHC 24132 (KLR)

Ponda v Mweu (Civil Appeal 66B of 2023) [2023] KEHC 24132 (KLR) (27 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24132 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 66B of 2023

M Thande, J

October 27, 2023

[FORMERLY MOMBASA HCCA E048 OF 2022]

Between

Christopher Chome Ponda

Applicant

and

Paul Katana Mweu

Respondent

Ruling

1. The Appellant herein filed an appeal dated 30. 3.22 in Mombasa High Court, against the judgment of Hon. Nelly Chechirchir Adalo delivered on 1. 3.22, in Mariakani Civil Suit No. 474 of 2017 between the parties herein. The Appeal was on 29. 3.23 admitted to hearing and the file transferred to Malindi High Court.

2. The Respondent filed a Preliminary Objection (PO) dated 28. 8.23 raising the objections that the record of appeal is incompetent and incomplete for want of the decree appealed against. Further that the Appellant violated the mandatory provisions of Section 65(1)(b) of the Civil procedure Act.

3. The PO is opposed vide a replying affidavit sworn on 25. 9.23 by Jared Bosire, the Appellant’s counsel. It was deposed that failure to include the decree in the record of appeal was not intentional. When the Appellant extracted the decree and forwarded it to the trial court for execution, they were informed that the file had been transferred to Malindi. It was further stated that the omission does not invalidate the appeal as the Court has the discretion to grant leave for the filing of a supplementary record of appeal. Further, that Section 2 of the Civil procedure Act defines decree to include a judgment and that a certified copy of judgment is adequate. Further, no prejudice will be suffered by the Respondent by failure to include the decree in the record of appeal. As such the PO lacks merit as the same is meant to delay the determination of the Appeal. The Appellant urged that the PO be dismissed with costs.

4. Section 65(1)(b) of the Civil procedure Act cited by the Respondent provides: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—(b)from any original decree or part of a decree of a subordinate court, on a question of law or fact;

5. The provision provides that an appeal from a decree of part of a decree of a subordinate court shall lie to the High Court. Section 2 of the Act defines a decree as:“decree" means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it includes the striking out of a plaint and the determination of any question within section 34 or section 91, but does not include—a.any adjudication from which an appeal lies as an appeal from an order; orb.any order of dismissal for default:Provided that, for the purposes of appeal, "decree" includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up;

6. It is quite evident from the proviso to definition of decree that it includes a judgment. The proviso goes on to provide that a judgment shall be appealable regardless of whether a decree has been drawn up, or is capable of being drawn up or not.

7. Order 42 Rule 13 stipulates the documents that must be on record before an appeal is admitted to hearing. Rule (13)(f) 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—(f)the judgment, order OR decree appealed from, and, where appropriate, the order (if any) giving leave to appeal:(emphasis).

8. An appellant is required to include in the record of appeal, the judgment, order or decree appealed from. The use of the word “or” is indicative of a disjunctive intent of the requirement. Accordingly, for purposes of an appeal, the filing of the judgment or order or decree is sufficient.

9. Further where an appellant may not have filed a decree or order appealed against with the memorandum of appeal, the law gives such an appellant the leeway to do so as soon as possible or within the time allowed by the Court. Order 42 Rule (2) provides: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 under section 79B of the Act until such certified copy is filed.

10. Failure to file a certified order or decree appealed against is a technicality which can be corrected pursuant to Order 42 Rule (2) of the Civil Procedure Rules. The provision accords with the Constitutional imperative in Article 159(2)(d) of the Constitution, that justice shall be administered without undue regard to procedural technicalities. Prescriptions of procedure and form should therefore not trump over the primary object of dispensing substantive justice. This also goes to protecting the right to a fair trial as guaranteed under Article 50 of the Constitution.

11. A look at the record herein will show that the record of appeal does not contain the decree. However, a certified copy of the judgment appealed against is on pages 221-225 of the record. Does the omission of the decree render the record of appeal incompetent as argued by the Respondent

12. The omission of a decree from the record of appeal has been the subject of many a judicial decision. In the case of Emmanuel Ngade Nyoka v Kitheka Mutisya Ngata [2017] eKLR, the Court of Appeal considered the issued and stated:Starting with the first issue, it is true that the record of appeal before the first appellate court at the time of filing did not contain the decree appealed from. This omission brought into focus the provisions of Order 42 rule 2 of the Civil Procedure Rules which provides interlia:“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 under section 79B of the act until such certified copy is filed.”However, the respondent did not take advantage of this provision to subsequently file a certified copy of the decree so that the appeal proceeded to hearing in the absence of the decree appealed from. Was this omission fatal to the appeal? The appellant thinks so as according to him the requirement is couched in mandatory terms. The Judge did not agree with him reasoning that:“The word “Decree” has been defined by the Civil Procedure Act, Cap 21 to include judgment. In fact, the Civil Procedure Act has provided at section 2 that the judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of a judgment may not have been drawn up or may not be capable of being drawn up”.This is the essence of the proviso to the definition of the term “decree.”According to the Judge, the record of appeal before him had a certified copy of the judgment of the trial court. Consequently, he reasoned, the record of appeal was competent notwithstanding the fact that a formal decree had not been included in the record.We entirely agree with the reasoning of the learned Judge on this aspect. In any event, this was a mere technicality that could not have sat well with the current constitutional dispensation that calls upon courts to go for substantive justice as opposed to technicalities. Further holding otherwise would have run counter to the overriding objective as captured in sections 1A and 1B of the Civil Procedure Act. Finally, one would ask what prejudice did the appellant suffer with the omission of the certified copy of the decree in the record of appeal. We do not discern any.

13. Duly guided by the holding of the Court of Appeal in the cited decision, I find and hold that the omission of the decree in the record of appeal herein is not fatal and the certified copy of judgment is adequate for the purpose of the appeal. Further the said omission will occasion the Respondent no prejudice at all.

14. The improper filing of preliminary objections has been frowned upon by our superior courts as they do nothing but occasion delay, needlessly increase costs and even waste judicial time. In the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, Sir Charles Newbold opined:The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. This improper practice should stop.

15. This is evidently a clear case of improper raising of a preliminary objection and has served to unnecessarily delay the matter herein and increase costs. In the result, I find that the Preliminary Objection dated 28. 8.23 lacks merit and the same is hereby dismissed with costs to the Appellant.

DATED, SIGNED AND DELIVERED IN MALINDI THIS 27TH DAY OF OCTOBER 2023M. THANDEJUDGEIn the presence of: -………………………………………… for the Appellant………………………………………… for the Respondent…………………………………………………Court Assistant