1. The background of the appeal is a suit filed in the trial court vide a Plaint dated 17th March 2022 where the Plaintiff averred that on or about the 1st day of September 2021, the Plaintiff was lawfully riding motor cycle registration No. KMDE 366M when upon reaching Narok-Tononoka Junction the Defendant and/or his authorized driver, servant and/or employee negligently and/or carelessly drove, managed and/or controlled motor vehicle registration number KPV 660 causing the said motor vehicle to knock and/or collide with the Plaintiff’s motor cycle thereby occasioning the Plaintiff severe injuries, pain and damage.
2. The Plaintiff prayed that judgment be entered against the Defendant for general damages, special damages for Kshs. 74,470, costs of and/or incidental to the suit, and interest at court rates.
3. This suit was heard in the trial court and judgment delivered on 19th October 2023. However, this court was not furnished with a certified copy of the judgment and/or decree, and typed proceedings.
4. Being dissatisfied, the Appellant appealed the judgment through the Memorandum of Appeal dated 26th October 2023 on grounds THAT: -
1. The Learned Trial Magistrate erred and misdirected herself by relying on wrong principles when assessing damages that were awarded to the respondent.
2. The Learned Trial Magistrate erred and misdirected herself and failed to apply precedents and tenets/principles of the law applicable in awarding damages.
3. The Learned Trial Magistrate erred and misdirected herself by in awarding a sum in respect of damages which was inordinately high in the circumstances which was excessive in the circumstances occasioning a miscarriage of justice.
4. The Learned Trial Magistrate erred in law and fact by failing to adequately evaluate the evidence and exhibits and thereby arrived at a decision unsustainable in law.
5. The Learned Trial Magistrate erred and misdirected herself by ignoring the defendant’s submissions on record hence arriving at a wrong decision on quantum.
6. The Learned Trial Magistrate erred and misdirected herself by ignoring the evidence of witnesses on record hence arriving on a wrong decision on quantum.
5. The Appellant prayed for orders that the appeal be allowed with costs, the judgment delivered on 19th October 2023 be set aside and costs be assessed again, and that the cost of this appeal be borne by the Respondent.
6. The appeal was canvassed by way of written submissions. As at the time of writing the judgment herein, the Appellant had not filed their submissions.
7. The Respondent in their submissions dated 7th November 2025 argued that the appeal is fatally defective and ought to be struck out for failure to comply with the mandatory requirements of the Civil Procedure Rules. Specifically, the Appellant failed to include a certified copy of the judgment and decree appealed from, as well as the trial court proceedings. According to the Respondent, these documents are essential for the appellate court to properly evaluate the decision under challenge. Reliance was placed on Order 42 Rule 13(4) of the Civil Procedure Rules, which was said to require inclusion of the judgment and decree as mandatory documents. The Respondent cited Mulatia & another (2024) eKLR and Abdalla v Ewins, Miscellaneous Application E008 of 2024, where appeals were struck out for similar omissions.
8. On the merits of the appeal, the Respondent submitted that the trial court correctly found that the Plaintiff/Respondent had proved his case on a balance of probabilities. It was argued that the Defendant/Appellant neither testified nor adduced evidence to challenge the Plaintiff’s testimony and documentary evidence. As a result, the Plaintiff’s evidence remained uncontroverted. The Respondent contended that an appellate court should only interfere with a trial court’s findings where there is a material error of law, fact, or principle leading to a miscarriage of justice. Reliance was placed on Muriu v Njuca Consolidated Limited (2025). The Respondent maintained that, having failed to challenge the evidence at trial, the Appellant cannot seek to discredit it on appeal.
9. Regarding liability, the Respondent submitted that the Plaintiff testified that on 21st September 2021 he was lawfully riding motorcycle registration number KMDE 366M along the Narok-Tononoka Junction when the Defendant’s motor vehicle registration number KPV 660 abruptly joined the road from a junction without giving way and collided with the motorcycle. The occurrence and manner of the accident were corroborated by a Police Abstract dated 9th December 2021 from Makupa Police Station.
10. The Respondent further submitted that police investigations concluded that the Defendant was to blame for the accident and that the Defendant was subsequently charged with a traffic offence. Since this evidence was not challenged by the Defendant, the Respondent argued that liability was proved to the requisite standard. It was further submitted that the Defendant owed the Plaintiff a duty of care as a fellow road user and breached that duty by failing to keep a proper lookout and give way to oncoming traffic.
11. On quantum, the Respondent submitted that the Plaintiff adduced medical evidence showing that he sustained a comminuted fracture of the left humerus at the surgical neck area, post-traumatic arthritis and stiffness of the left shoulder joint complex, and soft tissue injuries to the right hand. Although the Defendant produced a medical report dated 27th July 2022, that report confirmed the injuries suffered by the Plaintiff. The report further indicated that the Plaintiff would require future medical treatment, including medication estimated at Kshs. 3,000 for six months and physiotherapy sessions costing approximately Kshs. 40,000, and assessed permanent disability at 12%.
12. The Respondent argued that the award of damages was justified in light of the injuries sustained and relied on Loise Njoki Kariuki v Bendricon Wamboka Waswa & another (2013) eKLR, where Kshs. 1,500,000 was awarded for similar injuries, and James Thiongo Gathiri v Nduati Njuguna Ngugi (2012) eKLR, where the court awarded Kshs. 1,800,000 in general damages. The Respondent further submitted that the Plaintiff proved special damages of Kshs. 16,470 through receipts and the medical report fee receipt produced in evidence.
13. Accordingly, the Respondent urged the court to find that the appeal is both procedurally defective and substantively without merit, and to dismiss it with costs.
Analysis
14. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 123 as follows: -
“… Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …”
15. I have considered the Record of Appeal dated 28th April 2025 and submissions by the parties. The issues for determination are: -
(a) Whether the appeal is incompetent for failure to include a certified copy of the judgment, decree and proceedings from the trial court.
(b) What orders on costs should issue
16. The record before this court confirms that the Appellant did not furnish the court with a certified copy of the judgment appealed against, the decree, or the typed proceedings of the subordinate court. These documents are essential for the proper determination of an appeal.
17. Order 42 Rule 13(4) of the Civil Procedure Rules requires that before an appeal is set down for hearing, the court must be satisfied that the record of appeal contains, inter alia, the pleadings, notes of the trial magistrate, transcript of official notes, judgment, decree or order appealed from and such other documents as may be necessary for the determination of the appeal.
18. The Court of Appeal in Chege v Suleiman [1988] KECA 131 (KLR) emphasized that: -
“…failure to extract the decree or order of the court before launching the record of appeal, is a point which goes to the jurisdiction of the Court and since the jurisdiction of this Court is founded on statute, it cannot be properly invoked unless the intending appellant strictly complies with its provisions.
Thus in Mohamedbai Co Ltd v Ghani 19 EACA page 38 it was held by the East Africa Court of Appeal that as the intending appellant had not drawn the formal order before purporting to appeal against it, the purported appeal cannot be entertained.”
19. More recently, courts have consistently held that failure to include mandatory documents in the record of appeal is a fatal omission. Without the judgment, decree and proceedings, this court is unable to ascertain the basis upon which the trial court arrived at its findings or to evaluate whether the complaints raised in the Memorandum of Appeal have merit.
20. The Appellant challenges both liability and quantum. However, the court has not been availed the evidence recorded by the trial court, the reasoning contained in the judgment, or the decree extracted therefrom. Consequently, the court is unable to undertake its duty as a first appellate court as articulated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123.
21. The burden rests upon an appellant to place before the appellate court a proper and complete record. Where the appellant fails to do so, the appeal cannot succeed. In Bwana v Bonaya & 2 others [2015] KESC 8 (KLR), the Court of Appeal reiterated that: -
“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.”
22. In the present appeal, despite filing the Memorandum of Appeal in October 2023, the Appellant neither filed the requisite documents nor filed submissions in support of the appeal. The omissions have deprived the court of the material necessary to interrogate the complaints raised.
23. Even assuming that the appeal was properly before the court, the Respondent's evidence as summarized in the submissions remained uncontroverted. The Appellant did not testify or call evidence at the trial. It is settled law that uncontroverted evidence which is credible and consistent may properly be relied upon by the court as held in Trust Bank Limited v Paramount Universal Bank Limited & 2 others (2009) eKLR.
24. Furthermore, an appellate court will not interfere with an award of damages unless it is shown that the trial court took into account an irrelevant factor, failed to take into account a relevant factor, or that the award is so inordinately high or low as to represent an entirely erroneous estimate. This principle was set out in Butt v Khan [1981] KLR 349 and Kemfro Africa Ltd t/a Meru Express Services & Another v Lubia & Another (No. 2) [1987] KLR 30.
25. In the absence of the judgment, proceedings and evidence from the trial court, this court cannot determine whether any of those grounds for interference have been established. Consequently, this court finds that the appeal is incompetent for failure to comply with the mandatory requirements governing records of appeal and, in any event, has not been demonstrated to have merit.
Determination
26. Accordingly, the makes the following orders;
The appeal is hereby struck out.
The Respondent shall have costs of the appeal.
Dated and delivered virtually at Mombasa this 25th day of June, 2026
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Mr. Mramba Advocate h/b for Mr. Waziri Advocate for the Appellant
Mr. Kabita Advocate for the Respondent
Ms. Salwa, Court Assistant
2. The Plaintiff prayed that judgment be entered against the Defendant for general damages, special damages for Kshs. 74,470, costs of and/or incidental to the suit, and interest at court rates.
3. This suit was heard in the trial court and judgment delivered on 19th October 2023. However, this court was not furnished with a certified copy of the judgment and/or decree, and typed proceedings.
4. Being dissatisfied, the Appellant appealed the judgment through the Memorandum of Appeal dated 26th October 2023 on grounds THAT: -
1. The Learned Trial Magistrate erred and misdirected herself by relying on wrong principles when assessing damages that were awarded to the respondent.
2. The Learned Trial Magistrate erred and misdirected herself and failed to apply precedents and tenets/principles of the law applicable in awarding damages.
3. The Learned Trial Magistrate erred and misdirected herself by in awarding a sum in respect of damages which was inordinately high in the circumstances which was excessive in the circumstances occasioning a miscarriage of justice.
4. The Learned Trial Magistrate erred in law and fact by failing to adequately evaluate the evidence and exhibits and thereby arrived at a decision unsustainable in law.
5. The Learned Trial Magistrate erred and misdirected herself by ignoring the defendant’s submissions on record hence arriving at a wrong decision on quantum.
6. The Learned Trial Magistrate erred and misdirected herself by ignoring the evidence of witnesses on record hence arriving on a wrong decision on quantum.
5. The Appellant prayed for orders that the appeal be allowed with costs, the judgment delivered on 19th October 2023 be set aside and costs be assessed again, and that the cost of this appeal be borne by the Respondent.
6. The appeal was canvassed by way of written submissions. As at the time of writing the judgment herein, the Appellant had not filed their submissions.
7. The Respondent in their submissions dated 7th November 2025 argued that the appeal is fatally defective and ought to be struck out for failure to comply with the mandatory requirements of the Civil Procedure Rules. Specifically, the Appellant failed to include a certified copy of the judgment and decree appealed from, as well as the trial court proceedings. According to the Respondent, these documents are essential for the appellate court to properly evaluate the decision under challenge. Reliance was placed on Order 42 Rule 13(4) of the Civil Procedure Rules, which was said to require inclusion of the judgment and decree as mandatory documents. The Respondent cited Mulatia & another (2024) eKLR and Abdalla v Ewins, Miscellaneous Application E008 of 2024, where appeals were struck out for similar omissions.
8. On the merits of the appeal, the Respondent submitted that the trial court correctly found that the Plaintiff/Respondent had proved his case on a balance of probabilities. It was argued that the Defendant/Appellant neither testified nor adduced evidence to challenge the Plaintiff’s testimony and documentary evidence. As a result, the Plaintiff’s evidence remained uncontroverted. The Respondent contended that an appellate court should only interfere with a trial court’s findings where there is a material error of law, fact, or principle leading to a miscarriage of justice. Reliance was placed on Muriu v Njuca Consolidated Limited (2025). The Respondent maintained that, having failed to challenge the evidence at trial, the Appellant cannot seek to discredit it on appeal.
9. Regarding liability, the Respondent submitted that the Plaintiff testified that on 21st September 2021 he was lawfully riding motorcycle registration number KMDE 366M along the Narok-Tononoka Junction when the Defendant’s motor vehicle registration number KPV 660 abruptly joined the road from a junction without giving way and collided with the motorcycle. The occurrence and manner of the accident were corroborated by a Police Abstract dated 9th December 2021 from Makupa Police Station.
10. The Respondent further submitted that police investigations concluded that the Defendant was to blame for the accident and that the Defendant was subsequently charged with a traffic offence. Since this evidence was not challenged by the Defendant, the Respondent argued that liability was proved to the requisite standard. It was further submitted that the Defendant owed the Plaintiff a duty of care as a fellow road user and breached that duty by failing to keep a proper lookout and give way to oncoming traffic.
11. On quantum, the Respondent submitted that the Plaintiff adduced medical evidence showing that he sustained a comminuted fracture of the left humerus at the surgical neck area, post-traumatic arthritis and stiffness of the left shoulder joint complex, and soft tissue injuries to the right hand. Although the Defendant produced a medical report dated 27th July 2022, that report confirmed the injuries suffered by the Plaintiff. The report further indicated that the Plaintiff would require future medical treatment, including medication estimated at Kshs. 3,000 for six months and physiotherapy sessions costing approximately Kshs. 40,000, and assessed permanent disability at 12%.
12. The Respondent argued that the award of damages was justified in light of the injuries sustained and relied on Loise Njoki Kariuki v Bendricon Wamboka Waswa & another (2013) eKLR, where Kshs. 1,500,000 was awarded for similar injuries, and James Thiongo Gathiri v Nduati Njuguna Ngugi (2012) eKLR, where the court awarded Kshs. 1,800,000 in general damages. The Respondent further submitted that the Plaintiff proved special damages of Kshs. 16,470 through receipts and the medical report fee receipt produced in evidence.
13. Accordingly, the Respondent urged the court to find that the appeal is both procedurally defective and substantively without merit, and to dismiss it with costs.
Analysis
14. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 123 as follows: -
“… Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …”
15. I have considered the Record of Appeal dated 28th April 2025 and submissions by the parties. The issues for determination are: -
(a) Whether the appeal is incompetent for failure to include a certified copy of the judgment, decree and proceedings from the trial court.
(b) What orders on costs should issue
16. The record before this court confirms that the Appellant did not furnish the court with a certified copy of the judgment appealed against, the decree, or the typed proceedings of the subordinate court. These documents are essential for the proper determination of an appeal.
17. Order 42 Rule 13(4) of the Civil Procedure Rules requires that before an appeal is set down for hearing, the court must be satisfied that the record of appeal contains, inter alia, the pleadings, notes of the trial magistrate, transcript of official notes, judgment, decree or order appealed from and such other documents as may be necessary for the determination of the appeal.
18. The Court of Appeal in Chege v Suleiman [1988] KECA 131 (KLR) emphasized that: -
“…failure to extract the decree or order of the court before launching the record of appeal, is a point which goes to the jurisdiction of the Court and since the jurisdiction of this Court is founded on statute, it cannot be properly invoked unless the intending appellant strictly complies with its provisions.
Thus in Mohamedbai Co Ltd v Ghani 19 EACA page 38 it was held by the East Africa Court of Appeal that as the intending appellant had not drawn the formal order before purporting to appeal against it, the purported appeal cannot be entertained.”
19. More recently, courts have consistently held that failure to include mandatory documents in the record of appeal is a fatal omission. Without the judgment, decree and proceedings, this court is unable to ascertain the basis upon which the trial court arrived at its findings or to evaluate whether the complaints raised in the Memorandum of Appeal have merit.
20. The Appellant challenges both liability and quantum. However, the court has not been availed the evidence recorded by the trial court, the reasoning contained in the judgment, or the decree extracted therefrom. Consequently, the court is unable to undertake its duty as a first appellate court as articulated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123.
21. The burden rests upon an appellant to place before the appellate court a proper and complete record. Where the appellant fails to do so, the appeal cannot succeed. In Bwana v Bonaya & 2 others [2015] KESC 8 (KLR), the Court of Appeal reiterated that: -
“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.”
22. In the present appeal, despite filing the Memorandum of Appeal in October 2023, the Appellant neither filed the requisite documents nor filed submissions in support of the appeal. The omissions have deprived the court of the material necessary to interrogate the complaints raised.
23. Even assuming that the appeal was properly before the court, the Respondent's evidence as summarized in the submissions remained uncontroverted. The Appellant did not testify or call evidence at the trial. It is settled law that uncontroverted evidence which is credible and consistent may properly be relied upon by the court as held in Trust Bank Limited v Paramount Universal Bank Limited & 2 others (2009) eKLR.
24. Furthermore, an appellate court will not interfere with an award of damages unless it is shown that the trial court took into account an irrelevant factor, failed to take into account a relevant factor, or that the award is so inordinately high or low as to represent an entirely erroneous estimate. This principle was set out in Butt v Khan [1981] KLR 349 and Kemfro Africa Ltd t/a Meru Express Services & Another v Lubia & Another (No. 2) [1987] KLR 30.
25. In the absence of the judgment, proceedings and evidence from the trial court, this court cannot determine whether any of those grounds for interference have been established. Consequently, this court finds that the appeal is incompetent for failure to comply with the mandatory requirements governing records of appeal and, in any event, has not been demonstrated to have merit.
Determination
26. Accordingly, the makes the following orders;
The appeal is hereby struck out.
The Respondent shall have costs of the appeal.
Dated and delivered virtually at Mombasa this 25th day of June, 2026
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Mr. Mramba Advocate h/b for Mr. Waziri Advocate for the Appellant
Mr. Kabita Advocate for the Respondent
Ms. Salwa, Court Assistant