https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10714

Rapid Kate Services Ltd v Ouma (Civil Appeal 87 of 2018) [2026] KEHC 10714 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10714 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal 87 of 2018 J Ngaah, J July 17, 2026 Between Rapid Kate Services Ltd Appellant and Stephen Otieno Ouma Respondent (Being an appeal from the judgment and decree of Hon. H. Nyakweba, Principal Magistrate, delivered on 24th April 2018 in Mombasa Civil Case No. 734 of 2009) Judgment Introduction 1.This is an appeal from the judgment of the Chief Magistrate’s Court at Mombasa (Hon. H. Nyakweba, Principal Magistrate) delivered on 24th April 2018 in Mombasa Civil Case No. 734 of 2009, in which the respondent’s claim in negligence against the appellant was upheld and the respondent awarded Kshs. 150,000.00 as general damages, Kshs. 1,500.00 as special damages and Kshs. 3,000.00 as costs, together with interest at court rates. 2.The respondent’s case at the trial court was that on 23rd December 2007, while in the course of his engagement by the appellant as a casual labourer offloading bags of fertiliser from a lorry, the bags collapsed on him and caused him injury; he attributed this to the appellant’s negligence and, in particular, to its failure to provide him with a safe system of work. The appellant, in its statement of defence dated 1st July 2009, denied liability and put the respondent to strict proof, disputing both the existence of an employment relationship and the occurrence of the accident in the manner described. 3.The suit had a long history at the trial court, passing through the hands of several magistrates, and the defence hearing was ultimately ordered to start de novo before Hon. H. Nyakweba, Principal Magistrate. 4.Aggrieved by the decision of the lower court, the appellant lodged a memorandum of appeal dated 23rd May 2018 raising four grounds, to the effect that the trial court misdirected itself on liability – by drawing an adverse inference against the appellant from the asserted non-production of an accident register and by finding a breach of the duty to provide a safe system of work without evidentiary basis – and on quantum, the damages awarded being said to lack a legal basis in circumstances where, according to the appellant, the respondent had not proved the existence of an employment relationship to the required standard. 5.The appeal was canvassed by way of written submissions, the appellant’s dated 11th December 2024 and the respondent’s dated 1st July 2025, and it is upon those submissions and the record of appeal dated 8th February 2024 that this matter falls to be determined. The preliminary question: absence of a decree 6.Before descending into the merits, I must, of my own motion, deal with a threshold question going to the very competence of the appeal. Having examined the record of appeal with some care, I am satisfied that no decree of the trial court forms part of it, and that there is nothing on the record to suggest that the appellant ever applied for, extracted or obtained a decree at all. 7.The certified index to the record lists sixteen items, running from the memorandum of appeal (pages 1–2) to the proceedings. Item 13 is described as “Copy of Judgment delivered on 24th April 2018” (pages 91–95); it is immediately followed, at item 14, by a letter dated 5th June 2018 requesting typed and certified proceedings, and at item 15 by a further letter dated 25th April 2019 renewing that request. At no point in the index, and at no point in the 133 pages comprising the record, is a decree of the trial court to be found, referred to as having been extracted, or accounted for by any certificate of delay tracing the time taken to obtain one. What was sought, and eventually supplied, on the face of the correspondence reproduced in the record, was “proceedings” – a document distinct from, and no substitute for, a decree. I am accordingly satisfied that the appellant neither applied for nor obtained the decree it purports to appeal against. Is an appeal without a decree viable? 8.Section 65(1) of the Civil Procedure Act, cap. 21, is the provision under which an appeal of this kind lies to this court, and it is the decree of the subordinate court, or part of it, that is the subject-matter of such an appeal. Section 2 of the Act defines a “decree” as “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”, the proviso further stipulating 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.” 9.Section 79G of the Act provides that every appeal from a subordinate court to the High Court “shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery of a copy of the decree or order,” subject to a proviso permitting admission out of time on sufficient cause shown. 10.Order 42 of the Civil Procedure Rules governs the preparation and content of the record in such an appeal. 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. 11.Rule 13(4) prescribes, in mandatory terms, the documents that must be on the court record before an appeal may be set down for hearing, including, at paragraph (f), “the judgment, order or decree appealed from” – a requirement from which, by the proviso to the rule, the court may not dispense. 12.The question these provisions pose – whether an appeal can be entertained in the entire absence of a decree – has been considered on a number of occasions by this court and by the Court of Appeal. In Kyuma v Kyema (1988) KLR 185, the Court of Appeal, construing section 79G, held that an intending appellant is obliged first to file a memorandum of appeal and, second, a copy of the formal order or decree, underscoring that the thirty-day period for appealing runs, and the appeal is founded, upon the decree or order and not upon the judgment simpliciter. 13.I had occasion to consider this precise question in Ndegwa Kamau t/a Sideview Garage v Fredrick Isika Kalumbo, Nyeri HCCA No. 51 of 2013 [2016] eKLR, where, after tracing the requirements of section 79G and Order 42 rule 2, I held that a decree or order appealed from “is a pertinent and an inextricable part of an appeal filed in the High Court against a decision from the subordinate court; without the decree or order appealed from there is, in effect, no appeal,” and that its preparation and filing is not a pastime which one may choose to overlook but rather ... a mandatory obligation without which no legitimate appeal can be said to have been lodged. I reached the same conclusion in Paul Kurenyi Leshuel v Ephantus Kariithi Mwangi & Another, Nyeri HCCA No. 76 of 2013 [2015] eKLR, associating myself there with the Court of Appeal’s holding in Municipal Council of Kitale v. Fedha, Civil Appeal No. 7 of 1983, that the omission cannot even be cured by a supplementary record, a supplementary record not being capable of comprising documents that ought to have formed part of the original record in the first place. 14.That approach accords with the view taken by the Supreme Court in Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others, SC Civil Application No. 20 of 2014 [2015] eKLR, that the rules prescribing the contents of a record of appeal exist to place before the court “such material as will enable the court to make a determination on the issues of law and fact that may be the subject of contest,” and with the view expressed by other judges of this court—for instance, in Elvis Anyimbo Sichenga v Orange Democratic Movement & 4 Others, Kakamega Election Petition Appeal No. 3 of 2018—that the omission of the decree “is not a mere technicality,” since, were it so, “the drafters of the rules would not have made its attachment a mandatory requirement.” 15.I am aware that a different view has, on occasion, been expressed elsewhere – that Order 42 rule 13(4)(f), being framed disjunctively (“the judgment, order or decree”), may be satisfied by the presence of the judgment alone, and that the proviso to the definition of “decree” in section 2 of the Act should be read to the same effect. I do not think that proviso assists an appellant in the position of the appellant before me. The proviso is addressed to the appellant who moves promptly, before a decree has yet been prepared, and who cannot for that reason await its extraction before lodging a memorandum of appeal within time; it says nothing to excuse an appellant who, years later, compiles and files a purported record of appeal without ever having applied for, obtained, or accounted for a decree at all. Nor do I think a document listed in the alternative in a rule prescribing the minimum contents of a record can be read to dispense with what section 65(1) of the Act identifies as the very subject matter of the appeal, namely, the decree of the subordinate court. 16.I, therefore, reaffirm the position I have consistently taken: an appeal from a subordinate court, which is not founded upon and unaccompanied in its record by a decree of that court is not a competent appeal. This is not an irregularity of form curable under Article 159(2)(d) of the Constitution; it goes to the jurisdiction of this court to entertain the appeal at all, for there is, in the circumstances here obtaining, no decree before me against which the relief the appellant seeks—the setting aside of a judgment and decree and dismissal of the suit—could sensibly be pronounced. Application to this appeal 17.Applying that position to the appeal before me: the certified index to the record makes plain that the appellant never applied for a decree, never obtained one, never filed a certified copy of one, and never accounted, by certificate of delay or otherwise, for its absence. What the appellant twice sought and eventually obtained were typed and certified proceedings—a wholly different document from a decree. On the authorities set out above, that omission is fatal to the competence of the appeal, and I have no option but to strike it out. 18.Civil Appeal No. 87 of 2018 is accordingly struck out for want of a decree of the trial court, with costs to the respondent. SIGNED, DATED AND DELIVERED ON 17 JULY 2026NGAAH JAIRUSJUDGE