JANET MWENDE MUSYOKA AND BRITISH AMERICANN TOBACCO(K)LIMITED VS PETER OKUNDI OMOGA JANET MWENDE MUSYOKA AND BRITISH AMERICANN TOBACCO(K)LIMITED VS PETER OKUNDI OMOGA

INTRODUCTION

Their appeal arises out of a decision by the learned Honorable Magistrate MS.BERYL OMOLLO(RM) delivered on 12^th May 2022 in Kisumu court suit No.66 of 2018.
The appeal is on both liability and quantum.
The claim arose out of an accident that occurred on 10/7/2017 along Ahero -Kisumu road near Lwanda Trading center. The accident involved motor vehicle registration number KBF 380D and KCF 491X Nissan Toyota Hiace.
The respondent was awarded:-
General damages for pain and suffering Kenyan shillings 600,000 less 20% commission bring it to the total of Kenyan shillings 480,000.\
Los of user of motor vehicle Kenya shillings 256,000.
Plus costs; according to the appellant in his submissions dated 24^th day of October 2024.
It is against that decision that the appellant has moved to this court raising 10 grounds of appeal as hereunder:-

i. The Learned Trial Magistrate grossly misdirected herself in treating the evidence and submissions on liability before him superficially and consequently coming to a wrong conclusion on the same.
ii. The Learned Trial Magistrate erred in fact and law in awarding general damages for- pain and suffering in a purely material damage claim.
iii. The Learned Trial Magistrate erred in awarding damages for loss of user in the absence of evidence and/or sufficient evidence to support the same thereby arrived at a decision unsustainable in law.
iv. The Learned Trial Magistrate grossly misdirected herself in treating the evidence and submissions on quantum before him superficially and consequently coming to a wrong conclusion on the same.
v. The Learned Trial Magistrate misdirected herself in ignoring the principles applicable and the relevant authorities cited in the written submissions presented and filed by the Appellant.
vi. The Learned Trial Magistrate erred in not sufficiently taking into account all the evidence presented before him in totality and in particular the evidence presented on behalf of the Appellant.
vii. The Learned Trial Magistrate erred in failing to hold that the Respondent had failed to prove negligence on the part of the Appellant while the onus of proof lay with the Respondent.
viii. The Learned Trial Magistrate proceeded on wrong principles (if any) when assessing the damages to be awarded to the Respondent and failed to apply precedents and tenets of law applicable.
ix. The Learned Trial Magistrate erred in awarding a sum in respect of damages which
x. The Learned Trial Magistrate failed to apply judicially and to adequately evaluate the evidence and exhibits tendered and thereby arrived at a decision unsustainable in law.

It is important for the court to highlight at this stage a matter of law that caught the attention of this court as the court settled to write the judgment.
The record of appeal dated 29^th January 2024 is incurably defective for it does not meet the requirements of Order 42 Rule 13 (4) (f).
The record contains a judgment in Kisumu CM’s Court Civil Suit No.324 of 2018 James Mokua Munyiri Vs. Cresencial Achonji Polo and a decree in the same suit.
The Judgement Kisumu CM’s Civil Suit No. 66 of 2018 Janet Mwende Musyoka & British American Tobacco Ltd Vs. Peter Okundi Omega which is the subject of the appeal is not included in the record of appeal.
The court has taken note of that failure on the part of the appellant as the respondent did not raise it in their submission and decided to raise the matter to a motive as it touches on the issue of the jurisdiction of the court to hear their appeal.
The Civil Procedure under Order 42 rule 13 (4) (F) provides:-

(4): Before allowing the appeal to go to 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 the party ,
that is to say ….
(f) The judgment, order or decree appealed from , and where appropriate the order (if any )giving leave to appeal.

The duty is on the court to ensure that before an appeal proceeds to hearing the documents set out under Order 42 Rule 13(4) (f) form part of the record of appeal thus it does not matter that the respondent did not raise the issue.
The rule is couched in mandatory terms thus the omission by the appellant to include the documents renders the appeal incompetent.
In Hamida Naroi Shek Vuri Vs. Faith Tumaini Kombe and 2 Others Petition (Application) No. 38 of 2018 the Supreme court held that where a required document is lacking in the record of appeal , devoid of a sufficient explanation for the omission, then the said record is one for striking out.
The appellant in this matter did not only fail to include the judgment and decree but included a judgment and decree that are not relevant to these proceedings. That in this court’s view is a monumental error on their part that should lead to the striking out the appeal.
In their preparation of records of appeal parties must guard against such mistakes as they are costly and often drive a deserving party from the seat of justice empty handed .However, the law is the law and must be adhered to by all parties and the courts must justly apply it.
In the circumstances of this appeal the court cannot close its eyes to the omission by the appellant . As a result this court finds that the appeal is incompetent for failure to include the proper decree and judgment appealed from.
The appeal is therefore struck out with costs.
It is so ordered.

JANET MWENDE MUSYOKA AND BRITISH AMERICANN TOBACCO(K)LIMITED VS PETER OKUNDI OMOGA

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