REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E002 OF 2024
CELESTINE EKIRAPA…….……………………………………APPELLANT
VERSUS
ALICE KHAYANGA…………….………………….………...RESPONDENT
(Being an appeal from the Judgement and Decree of the Principal Magistrate’s Court in Sirisia Civil Case No. 113 of 2019 delivered by Hon. R.K. Langat (PM) on 14th December 2023.)
JUDGEMENT
A. INTRODUCTION
1. The Appellant seeks to overturn the decision in Principal Magistrate’s Court in Sirisia Civil Case No. 113 of 2019 delivered by Hon. R.K. Langat (PM) on 14th December 2023 on both liability and quantum of damages. In the said case, the Appellant had sued the Respondent seeking recovery of general and special damages arising from a road accident that occurred on 14th August 2017, in which the Appellant sustained injuries.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). As was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
3. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
4. In the Amended Plaint dated 10th March 2022, the Appellant averred that on or about the 26th November 2016, she was lawfully travelling as a fare paying passenger aboard Motor Vehicle Registration number KBG 199E along Moding-Cheptais Murram road, particularly at Korosiandeti area, when the Respondent’s agent driver and/or servant drove and controlled Motor Vehicle Registration number KBG 199E in such a reckless, negligent and careless manner resulting into the Motor Vehicle rolling several times thereby causing the Appellant to sustain bodily injuries.
5. The Respondent in his Statement of Defence dated 22nd February 2022, denied the occurrence of the accident, liability and alternatively attributed the accident, if the same occurred, to the Appellant’s negligence wholly or substantially.
6. The matter proceeded to hearing and was concluded. In his judgment dated and delivered on 14th December 2023, the trial Magistrate found that the Respondent had proved her case against the Appellant and entered judgment against the Appellant and proceeded to award the Appellant Kshs. 200,000/= as general damages, Kshs. 10, 574/= as special damages together with to costs and interest from date of filing suit.
D. APPEAL
7. It is this decision of the trial Magistrate that has provoked the Appeal herein. In the memorandum of appeal dated 10th January 2024, the Appellant raised five (5) grounds of appeal.
8. Pursuant to directions given by the Court, parties filed their written submissions which I have duly considered.
E. DETERMINATION
9. Having considered the record of appeal, grounds of appeal, the submissions and the authorities relied on by the respective parties, I opine that the issues for determination are:
i. Whether there is a competent appeal on record.
ii. Whether the Appellant proved her case on a balance of probabilities.
10. On the first issue, Order 42 of the Civil Procedure Rules lists the documents that must be on the Court record. Rule 13(4) provides 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).”
11. As can be seen from the above provision, the record of appeal is required to contain the listed documents. The Court may however dispense with the production of any document it deems irrelevant.
12. In Kenya, the record of appeal shall contain the following:
a. Index of the documents in the record, with a numbering of the pages which they appear
b. Notice of appeal;
c. Certificate, if any, certifying the matter to be of general public importance;
d. Statement of address, telephone numbers and email address for service of the appellant and the Respondent;
e. Pleadings;
f. Record of proceedings at the trial and appellate court;
g. Affidavits and all documents of evidence relied upon at the hearing;
h. Judgment or ruling;
i. Certified decree or order; and
j. Any other documents as may be necessary.
13. Based on the above, it is clear that there is no record of appeal before this Honourable Court. This Court has not dispensed with the production of the same. In the premises, the record of appeal is missing.
14. In the case of Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others [2019] eKLR, the Supreme Court considered an application for striking out the record of appeal which did not contain the record of proceedings before the Court of Appeal and stated:
“(22) Under Rule 33(4), the contents of a Record of Appeal (from a court or tribunal in its appellate jurisdiction) contains the following documents from the first appellate court: the certificate, if any, certifying that the matter is of general public importance; the memorandum of appeal; the record of proceedings; and the certified decree or order. This Court has timely reiterated that under Rule 33(6) a document omitted may be filed in a Supplementary Record without leave of the Court with fifteen days of filing of the Record of Appeal; and subsequently with leave of the Court, the same document may be filed.
(23) It therefore emerges that failure to include the ‘record of proceedings of the court of Appeal” in the Record of Appeal does not automatically render the appeal filed before this Court fatal. For if the law contemplates that such an omitted document may be filed later, the same law cannot be said to render a Record of Appeal with that omission outrightly fatal. However, we hasten to add that where a required document lacks in the Record of Appeal, devoid of a sufficient explanation for the omission, is a ground for the striking out of that Record of Appeal.”
15. Contrary to the above quoted case, in this instant appeal, I have duly established that there is no record of appeal on record. Without a record of appeal, a Court cannot determine the appeal cause before it. Thus, if the requisite bundle of documents is omitted, the appeal is incompetent and defective, for failing the requirements of the law. A Court cannot exercise its adjudicatory powers conferred by law, or the Constitution, where an appeal is incompetent. An incompetent appeal divests a Court of the jurisdiction to consider factual or legal controversies embodied in the relevant issues.
F. CONCLUSION
16. Duly guided, I find that with no record of appeal, the appeal is incompetent and defective. The Court is thus divested of the jurisdiction to consider the issues placed before it, as the conditions set by law have not been met.
17. The upshot is that the Appeal herein being incompetent, is hereby struck out with costs to the Respondent.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 29TH day of January 2025.
Mwanaisha.S. Shariff
Judge
In the presence of:
Ms Wanyama holding brief for Bw’ Onchiri FOR APPELLANT
Mr Okaka Holding brief for Mr Onkangi FOR RESPONDENT
Peter Machoni -COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E002 OF 2024
CELESTINE EKIRAPA…….……………………………………APPELLANT
VERSUS
ALICE KHAYANGA…………….………………….………...RESPONDENT
(Being an appeal from the Judgement and Decree of the Principal Magistrate’s Court in Sirisia Civil Case No. 113 of 2019 delivered by Hon. R.K. Langat (PM) on 14th December 2023.)
JUDGEMENT
A. INTRODUCTION
1. The Appellant seeks to overturn the decision in Principal Magistrate’s Court in Sirisia Civil Case No. 113 of 2019 delivered by Hon. R.K. Langat (PM) on 14th December 2023 on both liability and quantum of damages. In the said case, the Appellant had sued the Respondent seeking recovery of general and special damages arising from a road accident that occurred on 14th August 2017, in which the Appellant sustained injuries.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). As was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
3. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
4. In the Amended Plaint dated 10th March 2022, the Appellant averred that on or about the 26th November 2016, she was lawfully travelling as a fare paying passenger aboard Motor Vehicle Registration number KBG 199E along Moding-Cheptais Murram road, particularly at Korosiandeti area, when the Respondent’s agent driver and/or servant drove and controlled Motor Vehicle Registration number KBG 199E in such a reckless, negligent and careless manner resulting into the Motor Vehicle rolling several times thereby causing the Appellant to sustain bodily injuries.
5. The Respondent in his Statement of Defence dated 22nd February 2022, denied the occurrence of the accident, liability and alternatively attributed the accident, if the same occurred, to the Appellant’s negligence wholly or substantially.
6. The matter proceeded to hearing and was concluded. In his judgment dated and delivered on 14th December 2023, the trial Magistrate found that the Respondent had proved her case against the Appellant and entered judgment against the Appellant and proceeded to award the Appellant Kshs. 200,000/= as general damages, Kshs. 10, 574/= as special damages together with to costs and interest from date of filing suit.
D. APPEAL
7. It is this decision of the trial Magistrate that has provoked the Appeal herein. In the memorandum of appeal dated 10th January 2024, the Appellant raised five (5) grounds of appeal.
8. Pursuant to directions given by the Court, parties filed their written submissions which I have duly considered.
E. DETERMINATION
9. Having considered the record of appeal, grounds of appeal, the submissions and the authorities relied on by the respective parties, I opine that the issues for determination are:
i. Whether there is a competent appeal on record.
ii. Whether the Appellant proved her case on a balance of probabilities.
10. On the first issue, Order 42 of the Civil Procedure Rules lists the documents that must be on the Court record. Rule 13(4) provides 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).”
11. As can be seen from the above provision, the record of appeal is required to contain the listed documents. The Court may however dispense with the production of any document it deems irrelevant.
12. In Kenya, the record of appeal shall contain the following:
a. Index of the documents in the record, with a numbering of the pages which they appear
b. Notice of appeal;
c. Certificate, if any, certifying the matter to be of general public importance;
d. Statement of address, telephone numbers and email address for service of the appellant and the Respondent;
e. Pleadings;
f. Record of proceedings at the trial and appellate court;
g. Affidavits and all documents of evidence relied upon at the hearing;
h. Judgment or ruling;
i. Certified decree or order; and
j. Any other documents as may be necessary.
13. Based on the above, it is clear that there is no record of appeal before this Honourable Court. This Court has not dispensed with the production of the same. In the premises, the record of appeal is missing.
14. In the case of Hamida Yaroi Shek Nuri v Faith Tumaini Kombe & 2 others [2019] eKLR, the Supreme Court considered an application for striking out the record of appeal which did not contain the record of proceedings before the Court of Appeal and stated:
“(22) Under Rule 33(4), the contents of a Record of Appeal (from a court or tribunal in its appellate jurisdiction) contains the following documents from the first appellate court: the certificate, if any, certifying that the matter is of general public importance; the memorandum of appeal; the record of proceedings; and the certified decree or order. This Court has timely reiterated that under Rule 33(6) a document omitted may be filed in a Supplementary Record without leave of the Court with fifteen days of filing of the Record of Appeal; and subsequently with leave of the Court, the same document may be filed.
(23) It therefore emerges that failure to include the ‘record of proceedings of the court of Appeal” in the Record of Appeal does not automatically render the appeal filed before this Court fatal. For if the law contemplates that such an omitted document may be filed later, the same law cannot be said to render a Record of Appeal with that omission outrightly fatal. However, we hasten to add that where a required document lacks in the Record of Appeal, devoid of a sufficient explanation for the omission, is a ground for the striking out of that Record of Appeal.”
15. Contrary to the above quoted case, in this instant appeal, I have duly established that there is no record of appeal on record. Without a record of appeal, a Court cannot determine the appeal cause before it. Thus, if the requisite bundle of documents is omitted, the appeal is incompetent and defective, for failing the requirements of the law. A Court cannot exercise its adjudicatory powers conferred by law, or the Constitution, where an appeal is incompetent. An incompetent appeal divests a Court of the jurisdiction to consider factual or legal controversies embodied in the relevant issues.
F. CONCLUSION
16. Duly guided, I find that with no record of appeal, the appeal is incompetent and defective. The Court is thus divested of the jurisdiction to consider the issues placed before it, as the conditions set by law have not been met.
17. The upshot is that the Appeal herein being incompetent, is hereby struck out with costs to the Respondent.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 29TH day of January 2025.
Mwanaisha.S. Shariff
Judge
In the presence of:
Ms Wanyama holding brief for Bw’ Onchiri FOR APPELLANT
Mr Okaka Holding brief for Mr Onkangi FOR RESPONDENT
Peter Machoni -COURT ASSISTANT