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The appeal in this matter arises out of a decision of the small claims in which the landed an educator dismissed both the claim and the counterclaim in Milimani SCC.COMM/E897/2022.
The appellant was the respondent in this small claims court and aggrieved by the judgment of the court has raised the following grounds of appeal in his memorandum of appeal dated 1 st April 2023 :
The Adjudicator erred in law and in fact by only considering the Claimant''s submissions in arriving at his judgement, while the Respondent''s submissions had been properly filed in Court.
The Adjudicator erred in law and in fact in finding that the Respondent had not adduced enough evidence in support of his counterclaim, while had as a matter of fact produced evidence in support of the same.
The Adjudicator erred in law in dismissing the Respondent''s counterclaim without having determined their submissions.
The matter came up for hearing on the 26 th November 2024 when MS Mwongera for the appellant informed the court that the firm of Kenja Advocates had filed an application to seize acting for the respondent. The respondent was absent and so was his counsel.
These codes directed MS Mwongera advocate to effect service upon the respondent in person and return to court on 20 /3/2025.
On 20/1/2025 MS Mwongera appeared and indicated to the court that she had served notice on all the parties but she had not filed an affidavit of service.
The matter was adjourned to allow her to do so and on the 27 th February 2025 MS Mwongera appeared and confirmed to this court that the respondent was duly served and there was an affidavit of service on record.
Counsel further indicated that the appellant had filed submissions and that since the respondent had not responded this court should proceed to consider the appeal that notwithstanding.
APPELLANT’S CASE
The gist of the appellant’s appeal is that the learned Honorable Adjudicator failed to consider the respondent’s submissions yet the same were properly filed thus the dismissal of their counterclaim occasioned a failure of justice.
The apparent father contends that they adduced sufficient evidence in support of the counterclaim thus the court ought to have allowed it.
ANALYSIS AND DETERMINATION
The duty of this court is a fast appellate court is well articulated in the case of Selle & Another Vs. Associated Motor Boat Co. Ltd [1968] EA 123.
The court however before embarking on the determination of the appeal must be satisfied that the provisions of Order 42 Rule 13(4) of The Civil Procedure Rules have been complied with before allowing the appeal to proceed to hearing.
The order reads:
[Order 42, rule 13.] Directions before hearing.
13. (1) On notice to the parties delivered not less than twenty-one days after the date of service of the memorandum of appeal the appellant shall cause the appeal to be listed for the giving of directions by a judge in chambers. (2) Any objection to the jurisdiction of the appellate court shall be raised before the judge before he gives directions under this rule.
(3) The judge in chambers may give directions concerning the appeal generally and in particular directions as to the manner in which the evidence and exhibits presented to the court below shall be put before the appellate court and as to the typing of any record or part thereof and any exhibits or other necessary documents and the payment of the costs of such typing whether in advance or otherwise.
(4) 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)
The record of appeal filed by the appellants in this matter does not include the decree appealed from .
The Civil Procedure Rules Order 42 Rule 13(4) (f) is couched in mandatory terms. The failure to include the decree is not a curable defect and thus any appeal that proceeds to hearing must contain the decree otherwise such an appeal is to be deemed to be incompetent.
In Bwana Mohamed Bwana Vs. Silvano Ruko Bonaya & 2 Others [2015] eKLR the Supreme Court held:-
“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.”
The issue of none inclusion of decree is a jurisdictional In fact thus the appeal cannot be determined on its merit.
In view of the fact that the Record of appeal before this court does not satisfy that procedural requirement this Court finds that the appeal is incompetent and it is hereby to struck out.
In view of the fact that the appeal was not defended I will make no order as to costs.
It is so ordered.
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The appeal in this matter arises out of a decision of the small claims in which the landed an educator dismissed both the claim and the counterclaim in Milimani SCC.COMM/E897/2022.
The appellant was the respondent in this small claims court and aggrieved by the judgment of the court has raised the following grounds of appeal in his memorandum of appeal dated 1 st April 2023 :
The Adjudicator erred in law and in fact by only considering the Claimant''s submissions in arriving at his judgement, while the Respondent''s submissions had been properly filed in Court.
The Adjudicator erred in law and in fact in finding that the Respondent had not adduced enough evidence in support of his counterclaim, while had as a matter of fact produced evidence in support of the same.
The Adjudicator erred in law in dismissing the Respondent''s counterclaim without having determined their submissions.
The matter came up for hearing on the 26 th November 2024 when MS Mwongera for the appellant informed the court that the firm of Kenja Advocates had filed an application to seize acting for the respondent. The respondent was absent and so was his counsel.
These codes directed MS Mwongera advocate to effect service upon the respondent in person and return to court on 20 /3/2025.
On 20/1/2025 MS Mwongera appeared and indicated to the court that she had served notice on all the parties but she had not filed an affidavit of service.
The matter was adjourned to allow her to do so and on the 27 th February 2025 MS Mwongera appeared and confirmed to this court that the respondent was duly served and there was an affidavit of service on record.
Counsel further indicated that the appellant had filed submissions and that since the respondent had not responded this court should proceed to consider the appeal that notwithstanding.
APPELLANT’S CASE
The gist of the appellant’s appeal is that the learned Honorable Adjudicator failed to consider the respondent’s submissions yet the same were properly filed thus the dismissal of their counterclaim occasioned a failure of justice.
The apparent father contends that they adduced sufficient evidence in support of the counterclaim thus the court ought to have allowed it.
ANALYSIS AND DETERMINATION
The duty of this court is a fast appellate court is well articulated in the case of Selle & Another Vs. Associated Motor Boat Co. Ltd [1968] EA 123.
The court however before embarking on the determination of the appeal must be satisfied that the provisions of Order 42 Rule 13(4) of The Civil Procedure Rules have been complied with before allowing the appeal to proceed to hearing.
The order reads:
[Order 42, rule 13.] Directions before hearing.
13. (1) On notice to the parties delivered not less than twenty-one days after the date of service of the memorandum of appeal the appellant shall cause the appeal to be listed for the giving of directions by a judge in chambers. (2) Any objection to the jurisdiction of the appellate court shall be raised before the judge before he gives directions under this rule.
(3) The judge in chambers may give directions concerning the appeal generally and in particular directions as to the manner in which the evidence and exhibits presented to the court below shall be put before the appellate court and as to the typing of any record or part thereof and any exhibits or other necessary documents and the payment of the costs of such typing whether in advance or otherwise.
(4) 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)
The record of appeal filed by the appellants in this matter does not include the decree appealed from .
The Civil Procedure Rules Order 42 Rule 13(4) (f) is couched in mandatory terms. The failure to include the decree is not a curable defect and thus any appeal that proceeds to hearing must contain the decree otherwise such an appeal is to be deemed to be incompetent.
In Bwana Mohamed Bwana Vs. Silvano Ruko Bonaya & 2 Others [2015] eKLR the Supreme Court held:-
“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.”
The issue of none inclusion of decree is a jurisdictional In fact thus the appeal cannot be determined on its merit.
In view of the fact that the Record of appeal before this court does not satisfy that procedural requirement this Court finds that the appeal is incompetent and it is hereby to struck out.
In view of the fact that the appeal was not defended I will make no order as to costs.
It is so ordered.
'