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INTRODUCTION.
The appellant in this matter was the respondent in the Small claims court where he was sued for the recovery of Ksh.75, 760 being money owed and due to the claimant (Respondent in this appeal).
The court entered judgment in favor of the respondent and a decree issued in favor of the judgment creditor for the sum of Ksh. 83,325 being the principal sum plus costs and interests.
Aggrieved by the decision of the Lower court the appellant made an application for review before the Adjudicator.
The application was filed under certificate of urgency on 27 th February 2024.
In the application the appellant sought the review of judgment entered by the court on the basis of what he stated as being “serious anomalies on the face of the record which errors are prejudicial to the applicant in that the date of judgment preceded the date when the proceedings commenced.”
The appellant further stated that if the respondent was to be allowed to execute the judgment as it were, the respondent would be effectively seeking to unjustly enrich himself.
According to the applicant in the application for review, the court had not taken into account payments made to the respondent which were not factored in the judgment despite there having been receipts to prove the same.
ANALYSIS AND DETERMINATION.
The appellant in this matter sought to appeal against a Ruling dated the 5 th March 2024 in Kisumu SCCLM No.061 of 2022.
The memorandum of appeal clearly was drawn with the said Ruling in mind.
Counsel for the appellant filed a record of appeal and in the index indicated the following as being the documents contained in the record:
Memorandum of Appeal
Decree
Application dated 20/2/2024
Proceedings
Judgment
Supporting documents
Summons
Replying affidavit
Plaintiffs statement of claim.
The index of documents is dated 30 th August 2024.
The appellant did not include in the record of appeal the Ruling that he sought to challenge.
It follows therefore that this court must deal with the issue of the competence of the appeal in limine as that is a threshold issue and goes to the jurisdiction of the court to determine the appeal.
Under Order 42 Rule 13 (4) of the Civil Procedure Rules, the record of appeal should contain the judgment, order or decree appealed from.
It would therefore follow as of necessity where the appeal is against a Ruling then the Ruling appealed from must be included in the record of appeal in line with the ejusdem generis rule of interpretation of statutes.
Order 42 Rule 13 (4) (11) makes it mandatory that all the documents mentioned under Rule 13 (4) (f) must be included.
Under the of ejusdem generis rule the Ruling of appealed from would take the place of judgment in Order 42 Rule 13 (4) (f).
In Oduwo Vs. Onyuka (Civil Appeal No. E077 of 2023 [2024] KEHC 7658 (KLR) 26 th June 2024 the learned Honorable K.W KIARIE held:-
“The appellant did not attach a copy of the impugned ruling. He therefore offended the requirements prescribed by order 42 Rule 13 (4) (f). I find that the appeal is incompetent and accordingly strike it out with no orders as to costs.”
Like Hon. Justice Kiarie before me, I similarly find and hold that the failure by the appellant to include the impugned ruling in the record has rendered the appeal incompetent and is accordingly struck out.
The non- compliance with procedure deprives the court of the necessary jurisdiction hear and determine the matter. I therefore proceed to order the appeal struck out with no order as to costs since the respondent did not file their submissions to defend the appeal.
The respondent should therefore not reap where he did not sow.
It is so ordered.,
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INTRODUCTION.
The appellant in this matter was the respondent in the Small claims court where he was sued for the recovery of Ksh.75, 760 being money owed and due to the claimant (Respondent in this appeal).
The court entered judgment in favor of the respondent and a decree issued in favor of the judgment creditor for the sum of Ksh. 83,325 being the principal sum plus costs and interests.
Aggrieved by the decision of the Lower court the appellant made an application for review before the Adjudicator.
The application was filed under certificate of urgency on 27 th February 2024.
In the application the appellant sought the review of judgment entered by the court on the basis of what he stated as being “serious anomalies on the face of the record which errors are prejudicial to the applicant in that the date of judgment preceded the date when the proceedings commenced.”
The appellant further stated that if the respondent was to be allowed to execute the judgment as it were, the respondent would be effectively seeking to unjustly enrich himself.
According to the applicant in the application for review, the court had not taken into account payments made to the respondent which were not factored in the judgment despite there having been receipts to prove the same.
ANALYSIS AND DETERMINATION.
The appellant in this matter sought to appeal against a Ruling dated the 5 th March 2024 in Kisumu SCCLM No.061 of 2022.
The memorandum of appeal clearly was drawn with the said Ruling in mind.
Counsel for the appellant filed a record of appeal and in the index indicated the following as being the documents contained in the record:
Memorandum of Appeal
Decree
Application dated 20/2/2024
Proceedings
Judgment
Supporting documents
Summons
Replying affidavit
Plaintiffs statement of claim.
The index of documents is dated 30 th August 2024.
The appellant did not include in the record of appeal the Ruling that he sought to challenge.
It follows therefore that this court must deal with the issue of the competence of the appeal in limine as that is a threshold issue and goes to the jurisdiction of the court to determine the appeal.
Under Order 42 Rule 13 (4) of the Civil Procedure Rules, the record of appeal should contain the judgment, order or decree appealed from.
It would therefore follow as of necessity where the appeal is against a Ruling then the Ruling appealed from must be included in the record of appeal in line with the ejusdem generis rule of interpretation of statutes.
Order 42 Rule 13 (4) (11) makes it mandatory that all the documents mentioned under Rule 13 (4) (f) must be included.
Under the of ejusdem generis rule the Ruling of appealed from would take the place of judgment in Order 42 Rule 13 (4) (f).
In Oduwo Vs. Onyuka (Civil Appeal No. E077 of 2023 [2024] KEHC 7658 (KLR) 26 th June 2024 the learned Honorable K.W KIARIE held:-
“The appellant did not attach a copy of the impugned ruling. He therefore offended the requirements prescribed by order 42 Rule 13 (4) (f). I find that the appeal is incompetent and accordingly strike it out with no orders as to costs.”
Like Hon. Justice Kiarie before me, I similarly find and hold that the failure by the appellant to include the impugned ruling in the record has rendered the appeal incompetent and is accordingly struck out.
The non- compliance with procedure deprives the court of the necessary jurisdiction hear and determine the matter. I therefore proceed to order the appeal struck out with no order as to costs since the respondent did not file their submissions to defend the appeal.
The respondent should therefore not reap where he did not sow.
It is so ordered.,
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