https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11239

Karim v Mwayogwe (Civil Appeal E213 of 2024) [2026] KEHC 11239 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11239 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E213 of 2024 J Ngaah, J July 24, 2026 Between Rizwaya Abdul Karim Appellant and Athumani Mohamed Mwayogwe Respondent (Being an appeal from the judgment of Hon. Lewis K. Gatheru, Principal Magistrate, delivered on 11th July 2024 in Mombasa CMCC No. E512 of 2022) Judgment Introduction 1.By a Memorandum of Appeal dated 18th July 2024, the Appellant seeks the review and/or setting aside of the judgment of Hon. Lewis K. Gatheru, Principal Magistrate, delivered on 11th July 2024 in Mombasa CMCC No. E512 of 2022, to the extent of the trial court's finding on quantum. Six grounds are pleaded, all directed at the award of general damages and future medical expenses; there is no challenge to the trial court's finding on liability, and no cross-appeal. 2.Before the six grounds can be considered on their merits, the Court must first satisfy itself that the appeal is competently and properly before it. The competency of an appeal, going as it does to the appellate jurisdiction of this Court to entertain it at all, is a threshold question which the Court is bound to address as a preliminary issue. Background 3.The suit before the trial court, CMCC No. E512 of 2022, arose from a road traffic accident on 16th May 2021 along Nyerere Avenue, Mombasa, in which the Respondent, then riding pillion on motor cycle registration number KMFM 860N, was knocked down by motor vehicle registration number KCY 786L, driven by or on behalf of the Appellant. Judgment was entered for the Respondent on 11th July 2024, with liability apportioned 90% against the Appellant and 10% against the rider of the motor cycle, and damages assessed and awarded under the heads of general damages, future medical expenses and special damages. 4.Being aggrieved, the Appellant filed the Memorandum of Appeal on 18th July 2024, and the Record of Appeal was thereafter compiled, indexed and certified. The certificate under Order 42 Rule 13(4) of the Civil Procedure Rules, signed by Counsel for the Appellant, is dated 12th February 2025 and certifies that the Record of Appeal has been prepared to accord with the copies supplied by the Chief Magistrate, Voi. Competency of the appeal 5.On perusal of the Record of Appeal as filed, the Court has had occasion to examine the index appearing at the third page of the record, which lists nineteen items said to be contained in the record, running from the Memorandum of Appeal (items 1–2) through to Certified Copies of Proceedings in Mombasa SRMCC No. E512 of 2022 (item 19, at pages 126–135). 6.Item 18 of that index is described as "Copy of Judgment in Mombasa SRMCC NO.512 OF 2022," appearing at pages 120 to 125 of the record. There is, however, no item in the index, and no document in the body of the record, described as or amounting to a decree. What has been included is the judgment of the trial court alone. The formal decree extracted from that judgment, the document which quantifies, in operative and enforceable terms, precisely what was adjudged as between the parties, is absent from the record altogether. 7.Section 65(1) of the Civil Procedure Act is the provision under which an appeal of this kind lies to this Honourable 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 that a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of it may not have been drawn up or may not be capable of being drawn up. 8.Section 79G of the Act provides that every appeal from a subordinate court to the High Court shall be filed within thirty days from the date of the decree or order appealed against, excluding any time 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. 9.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." 10.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. 11.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. 6.This Court has had occasion to consider this precise question before. In Ndegwa Kamau t/a Sideview Garage v Fredrick Isika Kalumbo, Nyeri HCCA No. 51 of 2013 [2016] eKLR, it was held, after tracing the requirements of section 79G and Order 42 rule 2, 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. The same conclusion was reached in Paul Kurenyi Leshuel v Ephantus Kariithi Mwangi & Another, Nyeri HCCA No. 76 of 2013 [2015] eKLR, associating with the Court of Appeal's holding in Municipal Council of Kitale v Fedha, Civil Appeal No. 7 of 1983, [1983] KECA 4 (KLR) 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. The same approach was most recently applied in Rapid Kate Services Ltd v Stephen Otieno Ouma, Mombasa HCCA No. 87 of 2018, where an appeal in materially identical circumstances, a record from which a decree was wholly absent, with nothing to indicate that one had ever been applied for, was struck out for want of competency. 7.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 elsewhere — 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." 8.It has, on occasion, been suggested 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. That proviso does not, with respect, assist an appellant in the position of the Appellant before this Court. 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, months or years later, compiles and files a purported record of appeal without ever having applied for, obtained, or accounted for a decree at all. Nor can a document listed in the alternative in a rule prescribing the minimum contents of a record 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. 9.This Court accordingly reaffirms the position consistently taken in the authorities cited above: 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 such circumstances, no decree before the Court against which the relief sought — here, the review or setting aside of the trial court's finding on quantum — could sensibly be pronounced. 10.Applying that position to the appeal before this Court: the certified index to the Record of Appeal makes plain that no decree was ever included, and, as in Rapid Kate Services Ltd v Stephen Otieno Ouma, there is nothing on the face of the record — no correspondence, no application, no certificate of delay — to suggest that the Appellant ever applied for or obtained a decree from the trial court at all. What was compiled and certified, on 12th February 2025, was a record containing a copy of the judgment and the certified proceedings, but no decree. 11.No application has in any event been made by the Appellant, whether before or at the hearing of this appeal, for leave to file a supplementary record of appeal incorporating a decree. It may be added that, on the authority of Municipal Council of Kitale v Fedha, Civil Appeal No. 7 of 1983, such an application, had it been made, would not by itself have cured the defect: a supplementary record is not a vehicle for introducing documents that ought to have formed part of the original record in the first place. 12.In these circumstances, the Court is unable to treat the appeal as properly or competently before it. The six grounds pleaded in the Memorandum of Appeal, touching as they do on the quantum awarded by the trial court, cannot be adjudicated upon in the absence of the decree which alone gives formal, operative effect to that award. 13.For the reasons set out above, the appeal is struck out with costs to the respondent. DATED, SIGNED AND DELIVERED ON 24 JULY 2026NGAAH JAIRUSJUDGE