[2023] KEELC 17338 (KLR)

Wambugu v Wachira (Civil Appeal E013 of 2022) [2023] KEELC 17338 (KLR) (11 May 2023) (Judgment)

Neutral citation: [2023] KEELC 17338 (KLR)

Republic of Kenya

In the High Court at Kitale

Civil Appeal E013 of 2022

AC Mrima, J

May 11, 2023

Between

Dywn Wambua Wambugu

Appellant

and

Wilson Muigai Wachira

Respondent

(Being an appeal from the ruling by Hon. D. K. Mtai, Senior Resident Magistrate in Kitale Chief Magistrate's Court Civil Suit No. 242 of 2017 delivered on 11th March, 2022)

Judgment

1. The Appellant herein, Dywn Wambua Wambugu, instituted Kitale Chief Magistrate's Court Civil Suit No. 242 of 2017 (hereinafter referred to as ‘the suit’) against the Respondent herein, Wilson Muigai Wachira. The Appellant was the Plaintiff while the Respondent was the Defendant.

2. The suit is still pending.

3. On March 11, 2022, the trial Court rendered a ruling on admissibility of some documents. The ruling was against the Appellant herein.

4. Dissatisfied with the ruling, the Appellant lodged the appeal subject of this judgment.

5. The appeal was heard by way of written submissions which both parties duly complied.

6. This Court has carefully perused and understood the record of appeal, the ruling appealed against and the parties’ submissions.

7. In the course of the Court satisfying itself on the proprietness of the appeal, it downed that there was a glaring anomaly on the record of appeal. Although the issue was not taken up by the parties this Court will still deal with it as it goes to the substance and competency of the appeal thereby impugning the jurisdiction of this Court.

8. The issue is the absence of two formal extracted orders in the record. The first formal extracted order is the one that arose from the ruling of the trial Court delivered on March 11, 2022 which is the subject of the instant appeal. The second formal order is the one that allowed the Appellant to lodge an interlocutory appeal against the impugned ruling.

9. This Court has, despite diligence, not come across any of the two extracted orders in the record of appeal as well as the trial Court record. Further, the Memorandum of Appeal itself did not indicate that it contained any of the two formal extracted orders.

10. That being the position, I will now deal with the effect of the absence of the two formal extracted orders to the appeal.

11. Appeals from orders are provided for in sections 75 and 76 of the Civil Procedure Act and order 43 of the Civil Procedure Rules.

12. Order 42 rule 1 of the Civil Procedure Rulesprovide that an appeal to the High Court shall be in the form of a Memorandum of Appeal signed in the same manner as a pleading.

13. Once an appeal is lodged aforesaid, a record of appeal is then filed. the contents of the record of appeal are provided for in order 42 rule 13(4) of the Rules as follows: -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:(a)the memorandum of appeal;(b)the pleadings(c)the notes of the trial magistrate made at the hearing;(d)the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;(e)all affidavits, maps and other documents whatsoever put in evidence before the magistrate;(f)the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal;Provided that-i.a translation into English shall be provided of any document not in that language;(ii)the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).

14. A Record of Appeal is essentially supposed to be complete with all necessary documents. Courts have severally dealt with cases of incompleteness of Records of Appeal.

15. The Supreme Court of Kenya in Civil Application No. 20 of 2014 Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others (2014) eKLR referred to its earlier finding in Law Society of Kenya vs Centre for Human Rights and Democracy & Others, Supreme Court Petition No. 14 of 2013 where it held as follows: -(16) For a competent appeal to lie before this Court it must comply with the provisions of rule 33(1) of theSupreme Court Rules, 2012 which provides that:An appeal to the Court shall be instituted by lodging in the registry within thirty days of the date of filing of the notice of appeal –a.a petition of appeal;b.a record of appeal; andc.the prescribed fee.(17)…………….(36)The use of the word ‘shall’ in Rule 33(1) suggests the mandatory nature of the rule, requiring strict adherence to the completeness of the rule. Thus, a strict reading of rule 33(1) leads to the conclusion that an appeal comprises the Petition, the Record of Appeal, and the prescribed fee.(37)……….(38)The Record of Appeal is the complete bundle of documentation, including the pleadings, submissions, and judgment from the lower Court, without which the appellate Court would not be able to determine the appeal before it.

16. The Court further held, at paragraph 39, that:(39) If an intending appellant were to present the Court with a Notice and Petition of Appeal, but without the Record of Appeal, and expect the Court to determine ‘the appeal’ on the basis of these two, such an appeal would be incomplete and hence incompetent. Indeed, this is the gist of Rule 33(1) of the Supreme Court Rules.

17. Ngaah, J in Nyeri High Court Civil Appeal No. 51 of 2013 Ndegwa Kamau t/a Sideview Garage v Fredrick Isika Kalumbo (2016) eKLR dealt with how the Court of Appeal in Kyuma vs Kyema (1988) KLR 185 dealt with the interpretation of section 79G of the Civil Procedure Act.

18. The Court of Appeal held as follows: -The question is what documents must the appellant file within thirty days or within the time lawfully extended by the certificate of delay” Since the question contemplates that the appeal is against a decree or order, the appellant is obliged to apply first, Memorandum of Appeal in the form set out in appendix F No. 1 of the Civil Procedure Rules and second, a copy of the formal order of the court, if available. Rule 1A of Order 41 permits this latter document to be filed as soon “as possible and in any event within such a time as the court may order”. Therefore, a certificate of delay within the true intendment of section 79G must certify the time it took to prepare and deliver to the appellant “a copy of the order” of the magistrate. But the certificate of delay exhibited by the appellant, did not speak of a decree or order. No such order was sought or extracted. What the appellant, in error, sought and what the court dutifully supplied, were the proceedings and judgment.

19. Sitati, J in Kakamega Election Petition Appeal No. 3 of 2018 Elvis Anyimbo Sichenga v Orange Democratic Movement & 4 Others (2016) eKLR dealt with the same issue in an election petition appeal from the surbodinate Court. In that appeal the Record of Appeal did not include the decree of the judgment appealed against. The Learned Judge held as follows: -32. What then am I saying about the failure by the appellant to attach a certified copy of the decree appealed from? I am saying that that omission is not a mere technicality for if it were so, the drafters of the rules would not have made its attachment a mandatory requirement. I am therefore satisfied that the applicant has satisfied this court that the said omission is fatal to the petition and I so find.

20. This Court will also add its voice on the subject. First, under Order 42 Rule 13(4) of the Civil Procedure Rules a Court may dispense with any document to be part of the Record of Appeal except the memorandum of appeal, the pleadings and the judgment, order or decree appealed from and in appropriate cases the order giving leave to appeal. Second, the saving grace under Article 159(2)(d) of the Constitution is inapplicable in this case. That is because the provision only applies to matters relating to procedure or form and not the substance thereof. Third, despite the mandatory provisions on the filing of the orders in issue, the Appellant did not explain any difficulty in obtaining any of the extracted orders.

21. From the foregoing, the Record of Appeal is, therefore, incomplete for want of the formal extracted orders which from the ruling of the trial Court delivered on 11th March, 2022. In the words of the Supreme Court in Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others case (supra) ‘such an appeal would be incomplete and hence incompetent.’ The result is that the jurisdiction of this Court has not been properly invoked.

22. Having said so, the upshot is that there is no competent appeal for consideration. The appeal is, hence, struck out with costs.

23. Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 11TH DAY OF MAY, 2023. A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Miss. Arunga, Counsel for the Appellant.Mr. Nyamu, Counsel for the Respondent.Regina/Chemutai – Court Assistants.