[2023] KEHC 27570 (KLR)

Transoceanic Project Development (K) Limited v Manthi Muumbi t/a Junic Logistics (Civil Appeal E028 of 2022) [2023] KEHC 27570 (KLR) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27570 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E028 of 2022

F Wangari, J

November 17, 2023

Between

Transoceanic Project Development (K) Limited

Appellant

and

Nicholus Manthi Muumbi t/a Junic Logistics

Respondent

Ruling

1. This ruling relates to a notice of motion application dated 19th May, 2023 which sought for the following orders: -a.That the Honourable Court be pleased to strike out the Record of Appeal dated 4th August, 2022;b.That the Honourable Court pleased to strike out the Record of Appeal dated 25th August, 2022;c.That costs of this application and the appeal be borne by the Appellant.

2. The grounds in support of the application were among others, that the impugned Records of Appeal had been filed outside the timelines fixed by statute and that there was an omission of a crucial primary document to wit, a certified copy of the decree of the subordinate court. The Appellant filed grounds of opposition dated16th August, 2023. Among the grounds were that the Respondent had confused the appellate procedure applicable to this court and with that of the Court of Appeal. It was also contended that under the Civil Procedure Rules, 2010, filing a Record of Appeal was not a requirement. The Appellant thus sought for the dismissal of the application.

3. Directions were taken that the application be canvassed by way of written submissions wherein all parties complied by filing submissions and citing authorities in support of their respective rival positions. The Respondent’s submissions are dated 30th August, 2023 while the Appellant’s are dated 9th October, 2023. I am grateful to Counsel on their compliance as the submissions filed will aid the court in arriving at a just decision either way.

Analysis and Determination 4. I have considered the application, grounds of opposition, submissions together with the authorities relied upon by the parties as well as the law and in my view, the following are the issues for determinationa.Whether the Application is merited;b.Who bears the costs of the application?

5. Principally, the appeal is challenged on two fronts. First, it is submitted that the Records of Appeal be struck out for being filed out of time and without leave. Secondly, it is challenged on the ground that the record lacks a crucial primary document, that is, a certified copy of the decree of the subordinate court. Appeals are provided for under Order 42 of the Civil Procedure Rules. Order 42 Rule 1 is instructive. It provides as follows: -1. (1)Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.

6. The appeal herein was instituted on 1st March, 2022. Section 79G of the Civil Procedure Act clearly stipulates the timelines within which an appeal ought to be filed. It provides thus: -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 to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

7. It is thus settled that an appeal needs to be filed within thirty (30) days. However, the proviso gives room to a party to apply to file an appeal out of time. In the present case, the judgement subject of the appeal was delivered on 8th February, 2022. The memorandum of appeal was filed on 1st March, 2022. There is no dispute therefore that the appeal was filed within the requisite time. What is an appeal? Is it the record or the memorandum of appeal? This question is answered by the provisions of Order 42 Rule 1(1) which I have reproduced above.

8. I have no doubt in my mind and I am in agreement with the Appellant that there is no requirement to file a Record of Appeal. Order 42 Rule 13 (4) provides what the court needs to satisfy itself before fixing an appeal for hearing. It does not state that the stated documents ought to be in a record. If that was the intention of the framers of the Act and the Rules thereunder, nothing would have been so difficult than to state so. Having found as above, I find no merit on this limb of the application.

9. On the second ground on why the appeal ought to be struck out, the Respondent argues that the Record of Appeal lacks a crucial primary document being a certified copy of the Lower Court’s decree. A perusal of the Record of Appeal dated 4th August, 2022 reveals a draft decree at pages 101 to 102. This clearly confirms that the Appellant was alive to the requirement to attach a certified copy of the decree. Order 42 Rule 2 of the Civil Procedure Rules provide as follows: -“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 a time as the court may order, and the court need not consider whether to reject the Appeal summarily under Section 79B of Act until a copy is filed.”

10. This confirms that though a certified copy of the decree is necessary, it is not a must that it be filed together with the memorandum of appeal. It can be filed any other time and the court cannot summarily reject an appeal for failure to attach a certified copy of the decree until the decree is filed. Similarly, Order 42 Rule 13 (4) (f) suggests that either a judgement, order or decree is sufficient. The use of the conjunction “or” is disjunctive and not conjunctive and I thus find no merit on this argument.

11. The Supreme Court’s decision in Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others [2015] eKLR and the Court of Appeal’s decision in Chege v Suleiman [1988] eKLR though binding on this court were addressing themselves to the specific Acts and the Rules thereunder and in particular, the Supreme Court Act and the Rules thereunder and the Appellate Jurisdiction Act and the Rules thereunder. As such, the said decisions cannot be applied on a carte blanche basis but rather contextually.

12. On the issue of costs, it is settled that the same follows the event. That is the import of section 27 of the Civil Procedure Act. The court reserves its discretion on whether to award costs to either party. This was well enunciated by the Supreme Court in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate of & 4 others [2013] eKLR. Having considered the fact that this was an interlocutory application, it would be onerous to award costs to any party at this stage. Therefore, I direct that costs shall await the outcome of the appeal.

13. Based on the above discourse, I make the following orders: -a.The application dated 19th May, 2023 lacks merit and it is hereby dismissed;b.Costs to abide the outcome of the appeal.Orders accordingly.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 17TH DAY OF NOVEMBER, 2023. …………………..F. WANGARIJUDGEIn the presence of;Ms. Ogejoh Advocate for the AppellantMr. Mwangunya Advocate h/b for Mr. Ernest Mokaya Advocate for the RespondentMr. Barille, Court AssistantPage 1 of 2