'1. The Appeal that is before this court seeks to challenge the judgment of the trial Court dated 27.8.24.
2. It is based on the Amended Memorandum of Appeal dated 27.6.24.
3. Brief background this case is that a road traffic accident involving motor vehicle registration numberKCB053U and the Appellant that occurred on 7th June 2022.
4. It is the Appellant’s case that while walking along Outerring Road as a pedestrian, he was hit by the 1st Respondent''s car that was at the time of the accident being driven by the 2nd Respondent.
5. The accident was reported to Police station who issued a police abstract.
6. As a result of the accident, he passed on leaving behind a widow who thereafter secured letters of administration that enabled her to sue.
7. In the suit, the Appellant raised and pleaded negligence on the part of the Respondents who in return denied the same.
8. The case proceeded into full hearing wherein the Appellant called two witnesses who testified being the police officer and the widow of the deceased. They produced their witness statements after which they were cross examined.
9. The Appellant produced the police abstract, death certificate and the postmortem report as evidence.
10. On its part, the 2nd Respondent testified that he was driving when he saw the deceased cross the road. His lights were on, and he blames the deceased for the accident.
11. In the impugned judgment, the court dismissed the suit holding that the Appellant had not proven liability.
12. Aggrieved by the judgment the Appellant filed an amended memorandum of Appeal challenging the liability on the following grounds that; -
1) The learned Trial Magistrate erred in law and in fact and misdirected herself when she failed to consider the Appellants'' submissions on both points of law and facts.
2) The learned Magistrate misdirected herself in ignoring the principles applicable in assessing liability and the relevant authorities on liability cited in the written submissions presented and filed by the Appellants.
3) The learned Trial Magistrate failed to apply herself judicially to and adequately evaluate the evidence and exhibits tendered on liability thereby arriving at decision unsustainable in law.
4) That the learned magistrate erred in law and in fact in arriving at the said decision.
5) The learned Trial Magistrate''s decision was unjust, against the weight of evidence and based on misguided points of fact and wrong principles of Law and has occasioned a miscarriage of justice.
6) The learned trial Magistrate erred in law and in fact in failing to take into the account principle in the doctrine of Res Loquitur as pleaded by the Appellants.
7) 8 The court erred in law and fact in failing to find the Respondent was liable -particularly-because he had full-control-over-the-vehicle.
13. Parties filed and exchanged submissions. The said submissions and the record of appeal form the basis of the foregoing summaries. The proceedings were not part of the record of appeal.
Analysis and determination
14. The court has looked at the rival submissions and the judgment from where it is clear that the issues for determination are:
1) Whether this court has jurisdiction.
2) Whether or not the trial court erred in the determination of the issue of liability.
3) Who shall bear the costs?
Jurisdiction;
15. The applicable law that governs this kind of Appeal is Order 42 of the Civil Procedure Rules which lists in very clear terms the documents that must be on the court record of Appeal.
16. 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).
17. The Court may however dispense with the production of any document it deems irrelevant. Notably, the production of the Memorandum of Appeal, the pleadings and the decision Appealed against may not be dispensed with.
18. In the instant case, The Record of Appeal herein does not contain proceedings. This Court has not dispensed with the production of the same. In the premises, the Record of Appeal is incomplete.
19. The Appellant had the opportunity to cure the lacuna. No further Record of Appeal was filed to attend to this lapse. It would appear that the Appellant is satisfied with the defective Record of Appeal as filed.
20. The proceedings of the lower court are imperious when it comes to the determination of the issue of liability and this Appeal as a whole.
21. In failing to include the proceedings as part of the record this court’s jurisdiction has been taken away and I so hold.
22. 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.
23. The Appellant has not bothered to tender any explanation for the omission or failure to file the proceedings of the trial court rendering the Appeal as incompetent.
24. The Appellant cannot seek refuge under Article 159 of the Constitution in a bid to cure the fundamental lapse.
25. Given that the trial court proceedings are very critical. In the circumstances this does not look like a case of inadvertent omission.
26. While sitting on Appeal and in reviewing the case and the evidence this court is guided by principles as enunciated in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA where it was held thus;
“...this court is not bound necessarily to accept the findings of fact by the court below. An Appeal to this court ... is by way of retrial and the principles upon which this court acts in such an Appeal are well settled. 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...”
27. Logically, without the proceedings, the court sitting on Appeal cannot reconsider the evidence, evaluate it itself and draw its own conclusions within the principles as enunciated in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA [supra].
28. In the case of Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others [2015] eKLR the Supreme Court considering the incompleteness of a record of Appeal stated and held 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.
Determination;
29. Faced with an incomplete record, the Appeal before this court is incompetent and defective. The Court is thus divested of the jurisdiction to consider the 2nd issue placed before it.
Order;
Accordingly, the Appeal is hereby struck out with costs to the Respondents.
'
2. It is based on the Amended Memorandum of Appeal dated 27.6.24.
3. Brief background this case is that a road traffic accident involving motor vehicle registration numberKCB053U and the Appellant that occurred on 7th June 2022.
4. It is the Appellant’s case that while walking along Outerring Road as a pedestrian, he was hit by the 1st Respondent''s car that was at the time of the accident being driven by the 2nd Respondent.
5. The accident was reported to Police station who issued a police abstract.
6. As a result of the accident, he passed on leaving behind a widow who thereafter secured letters of administration that enabled her to sue.
7. In the suit, the Appellant raised and pleaded negligence on the part of the Respondents who in return denied the same.
8. The case proceeded into full hearing wherein the Appellant called two witnesses who testified being the police officer and the widow of the deceased. They produced their witness statements after which they were cross examined.
9. The Appellant produced the police abstract, death certificate and the postmortem report as evidence.
10. On its part, the 2nd Respondent testified that he was driving when he saw the deceased cross the road. His lights were on, and he blames the deceased for the accident.
11. In the impugned judgment, the court dismissed the suit holding that the Appellant had not proven liability.
12. Aggrieved by the judgment the Appellant filed an amended memorandum of Appeal challenging the liability on the following grounds that; -
1) The learned Trial Magistrate erred in law and in fact and misdirected herself when she failed to consider the Appellants'' submissions on both points of law and facts.
2) The learned Magistrate misdirected herself in ignoring the principles applicable in assessing liability and the relevant authorities on liability cited in the written submissions presented and filed by the Appellants.
3) The learned Trial Magistrate failed to apply herself judicially to and adequately evaluate the evidence and exhibits tendered on liability thereby arriving at decision unsustainable in law.
4) That the learned magistrate erred in law and in fact in arriving at the said decision.
5) The learned Trial Magistrate''s decision was unjust, against the weight of evidence and based on misguided points of fact and wrong principles of Law and has occasioned a miscarriage of justice.
6) The learned trial Magistrate erred in law and in fact in failing to take into the account principle in the doctrine of Res Loquitur as pleaded by the Appellants.
7) 8 The court erred in law and fact in failing to find the Respondent was liable -particularly-because he had full-control-over-the-vehicle.
13. Parties filed and exchanged submissions. The said submissions and the record of appeal form the basis of the foregoing summaries. The proceedings were not part of the record of appeal.
Analysis and determination
14. The court has looked at the rival submissions and the judgment from where it is clear that the issues for determination are:
1) Whether this court has jurisdiction.
2) Whether or not the trial court erred in the determination of the issue of liability.
3) Who shall bear the costs?
Jurisdiction;
15. The applicable law that governs this kind of Appeal is Order 42 of the Civil Procedure Rules which lists in very clear terms the documents that must be on the court record of Appeal.
16. 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).
17. The Court may however dispense with the production of any document it deems irrelevant. Notably, the production of the Memorandum of Appeal, the pleadings and the decision Appealed against may not be dispensed with.
18. In the instant case, The Record of Appeal herein does not contain proceedings. This Court has not dispensed with the production of the same. In the premises, the Record of Appeal is incomplete.
19. The Appellant had the opportunity to cure the lacuna. No further Record of Appeal was filed to attend to this lapse. It would appear that the Appellant is satisfied with the defective Record of Appeal as filed.
20. The proceedings of the lower court are imperious when it comes to the determination of the issue of liability and this Appeal as a whole.
21. In failing to include the proceedings as part of the record this court’s jurisdiction has been taken away and I so hold.
22. 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.
23. The Appellant has not bothered to tender any explanation for the omission or failure to file the proceedings of the trial court rendering the Appeal as incompetent.
24. The Appellant cannot seek refuge under Article 159 of the Constitution in a bid to cure the fundamental lapse.
25. Given that the trial court proceedings are very critical. In the circumstances this does not look like a case of inadvertent omission.
26. While sitting on Appeal and in reviewing the case and the evidence this court is guided by principles as enunciated in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA where it was held thus;
“...this court is not bound necessarily to accept the findings of fact by the court below. An Appeal to this court ... is by way of retrial and the principles upon which this court acts in such an Appeal are well settled. 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...”
27. Logically, without the proceedings, the court sitting on Appeal cannot reconsider the evidence, evaluate it itself and draw its own conclusions within the principles as enunciated in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA [supra].
28. In the case of Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others [2015] eKLR the Supreme Court considering the incompleteness of a record of Appeal stated and held 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.
Determination;
29. Faced with an incomplete record, the Appeal before this court is incompetent and defective. The Court is thus divested of the jurisdiction to consider the 2nd issue placed before it.
Order;
Accordingly, the Appeal is hereby struck out with costs to the Respondents.
'