A. BACKGROUND
1. This interlocutory appeal emanates from the ruling and order of Hon. Dennis Matutu, Senior Principal Magistrate delivered on 14th January, 2024, in Kisumu CMCC No. E446 of 2024, Herick Othieno & another v Michael Peter Ochieng & others).
2. The Respondents herein (the Plaintiffs before the lower court) filed the suit before the lower court vide a plaint dated 17th December, 2024 seeking the following reliefs against the Appellants (the Defendants before the trial court:
1. A permanent order of injunction do issue restraining the 1st, 2nd and 3rd Defendants either by themselves, their agents, church members, relatives or any other person whomsoever acting under their instructions from burying and/or interring, cremating or in any other way destroying and/or disposing of the body of the deceased the late Hellen Ndisi Otieno alias Salan Daru without the consent of the Plaintiffs and or leave of the Court.
2. A declaration that the final resting place of the deceased late Hellen Ndisi Otieno is her matrimonial home next to her deceased husband, Awendo Sub-county, Waware location, Waware sub-location in Migori County within the Republic of Kenya and for issuance of a burial permit to the Plaintiffs in these terms and cancellation of the burial permit obtained by the 1st Defendant.
3. A mandatory injunction directed at the 1st, 2nd and 3rd Defendants or any other person in possession of the body of the deceased Hellen Ndisi Otieno alias Salan Daru to release her body to the Plaintiffs as her eldest sons and the persons with legitimate right and authority to make burial arrangements for the deceased per Luo customs and traditions and that the burial permit in respect of the deceased’s remains be hereby released to the Plaintiffs.
4. That an order do issue that the Plaintiffs are free to conduct a postmortem examination on the body of the deceased to establish the cause of her death before her burial.
5. The 1st, 2nd and 3rd Defendants, their agents, servants, followers, members or any person under their instructions is hereby restrained from obstructing, scuttling, halting, stopping, or otherwise interfering with the burial of the late Hellen Ndisi Omondi alias Salan Daru (deceased).
6. The officer commanding the nearest police station to ensure compliance of these orders.
7. The Costs of this suit be borne by the Defendants.
3. Contemporaneous with the suit, the Respondents filed an application by way of motion on notice of even date seeking orders that:
1. [Spent].
2. THAT an interim order of injunction do issue to the 1st, 2nd and 3rd defendants’ either by themselves, their agents, church members, relatives or any other person whomsoever acting under their instructions from burying and or interring, cremating or in any other way destroying and or disposing of the body of the Deceased the late Hellen Ndisi Otieno alias Salan Daru pending hearing and determination of this application.
3. THAT an interim order to be issued against the 1st, 2nd and 3rd defendants to disclose to the plaintiffs the place where the body of the deceased is preserved pending hearing and determination of this application.
4. THAT an interim mandatory order directed at the 1st, 2nd and 3rd Defendants or any other person possessing the body of the Deceased, Hellen Ndisi Otieno alias Salan Daru to allow the plaintiffs herein and any of their relatives to view the body of the deceased pending hearing and determination of this application.
5. THAT an interim mandatory order directed at the 1st, 2nd and 3rd Defendants or any other person possessing the body of the Deceased, Hellen Ndisi Otieno alias Salan Daru not to release the said body for interment pending hearing and determination of this application.
6. THAT an order to issue to the Officer Commanding Usenge Police Station to enforce the order and ensure that the remains of the deceased are not interred by the Defendants on 22nd December, 2024 during the convention of the church to be held Siaya County, Usigu Sub-County, Usigu Division, West Imbo Location, Usenge Sub-location, Kodero Lower Village.
7. THAT an interim order of injunction be issued to the 1st, 2nd and 3rd defendants either by themselves, their agents, church members, relatives, or any other person whomsoever acting under their instructions from burying and or interring, cremating, or in any other way destroying and or disposing of the body of the Deceased the late Hellen Ndisi Otieno alias Salan Daru pending the hearing and determination of this suit filed herein.
8. THAT an interim mandatory order directed at the 1st, 2nd and 3rd Defendants or any other person possessing the body of the Deceased, Hellen Ndisi Otieno alias Salan Daru to allow the Plaintiffs herein and any of their relatives to view the body of the deceased pending hearing and determination of this suit.
9. THAT an interim mandatory order directed at the 1st, 2nd and 3rd Defendants or any other person possessing the body of the Deceased, Hellen Ndisi Otieno alias Salan Daru not to release the said body for interment pending hearing and determination of this suit.
4. On 19th December, 2024, the learned trial Magistrate allowed prayers 1 and 2 of the motion. The trial court further ordered that the Respondents deposit in court security for costs of Ksh.50,000/- by close of business on 23rd December, 2024 and directed that the balance of the application proceeds.
5. When the matter was placed before the trial court on 24th December, 2024 for inter partes hearing of the Respondents’ application, the learned trial Magistrate was informed that a Notice of Preliminary Objection had been proffered by the Appellants against the Respondents, challenging the territorial jurisdiction of the court to determine the dispute.
6. The learned trial Magistrate directed that the Preliminary Objection be urged within the response to the motion, whose hearing he adjourned to 30th December, 2024. The application was thus heard on that day.
7. In its ruling that was rendered on 14th January, 2025, the trial court dismissed the preliminary objection and allowed the application in the following terms:
a. THAT pending hearing and determination of this suit an interim order of injunction do issue to the 1st, 2nd and 3rd Defendants either by themselves, their agents, church members, relatives, or any other person whomsoever acting under their instructions from burying and/or interring, cremating or in any other way destroying and/or disposing of the body of the Deceased the late Hellen Ndisi Otieno alias Salan Daru.
b. THAT pending hearing and determination of this suit, an interim mandatory order directed at the 1st, 2nd and 3rd Defendants or any other person possessing the body of the Deceased, Hellen Ndisi Otieno alias Salan Daru to allow the Plaintiffs herein and any of their relatives to view the body of the deceased.
c. THAT pending hearing and determination of this suit, an interim mandatory order directed at the 1st, 2nd and 3rd Defendants or any other person possessing the body of the Deceased, Hellen Ndisi Otieno alias Salan Daru not to release the said body for interment and to continue preserving the body.
d. THAT pending hearing and determination of this suit, an interim order do issue against the 1st, 2nd and 3rd Defendants to disclose to the Plaintiffs the place where the body of the deceased is preserved.
e. THAT the orders in (b) and (c) above shall be served upon the facility/morgue, any person and/or institution in possession of the body of the deceased as shall be disclosed by the Respondents pursuant to orders in (c) above.
f. THAT costs of this application shall be in the cause.
8. My understanding of the ruling of the trial court is that orders were issued, inter alia, that pending the hearing and determination of the substantive suit:
i. The Appellants and/or their agents were restrained from burying, interring and/or disposing the remains of the deceased.
ii. The Appellants were ordered to allow the Respondents and their relatives to view the body of the deceased.
iii. The Appellants and/or any other were ordered not to release the said body for interment and to continue preserving the body.
iv. The Appellants were ordered to make disclosure to the Respondents the place where the remains of the deceased are preserved.
B. THE APPEAL
9. It is the above orders that the Appellants herein are challenging vide the instant appeal. The grounds of appeal presented by in the Memorandum of Appeal dated 14th January, 2025 are as follows:
1. The learned Magistrate grossly misdirected himself in failing to consider the submissions of the Appellants with respect to the application dated 17th December, 2024 despite the said submissions having raised serious issues of inconsistencies in the application dated 17th December, 2024.
2. The learned Magistrate grossly misdirected himself in dismissing the Appellants’ Notice of Preliminary Objection that the same was based on issues of facts yet the Preliminary Objection was purely on points of law pleaded in the plaint.
3. The learned Magistrate grossly misdirected himself by allowing an application that was presented and founded on wrong principles of law.
4. The learned Magistrate grossly misdirected himself by making orders that were not sought in the application dated 17th December, 2024.
5. The learned Magistrate grossly misdirected himself by granting mandatory injunctions at the application stage despite the same having been presented under an application brought under Order 40 of the Civil Procedure Rules, 2010.
6. The learned Magistrate misdirected himself in ignoring the principles applicable and the relevant authorities cited in the written submissions presented and filed before the Honourable Court and proceeded on unfounded and wrong principles of law.
7. The learned Magistrate erred in not sufficiently taking into account the circumstances of surrounding the filing of the application and granted orders that are untenable considering the issue at hand is a burial dispute.
8. The learned Magistrate erred in failing to hold that the deceased had a written will and the same had not been challenged by the Applicants in their supplementary affidavit.
9. The learned Magistrate proceeded on wrong principles (if any) when he made a determination that a prima facie case had been established when the Applicants presented no tangible evidence and failed short of the principles in the case of Giella v Cassman Brown.
10. The learned Magistrate grossly erred in law by failing to appreciate that the Plaintiff had no locus to stay the burial of his stepmother when the blood children were not even part of the original application before in court.
11. The learned Magistrate misdirected himself by failing to appreciate that there were existing court orders barring any activities on the purported parcel of land where they intended to inter the body of the deceased.
12. The learned Magistrate failed to apply judicially and to adequately evaluate the evidence and exhibits tendered and thereby arrived at a decision unsustainable in law by allowing the application and granting orders that were sought in the application.
10. The Appellants thus propose that the instant appeal be allowed and the orders of the trial court made in the ruling delivered on 14th January, 2025 be set aside with costs to the Appellants.
11. This court directed that the appeal proceeds by way of written submissions and gave the parties herein timelines for filing their submissions. Both parties filed their respective submissions.
C. COMPETENCE OF THE APPEAL.
12. I have perused the Record of Appeal as filed and cannot help noticing that the Appellant did not include in the same the pleadings (plaint and defence). Also missing from the Record of Appeal is the Notice of Motion dated 17th December, 2024, the affidavit in support thereof, the supplementary affidavit, the replying affidavit filed in opposition to the application and preliminary objection dated 23rd December, 2024, all of which are documents that were relied upon by the trial court as forming the genesis of the ruling and orders that are being appealed from.
13. Without a doubt, all the above excluded documents formed part of crucial records whose contents were considered by the trial court in reaching its determination vide the ruling that was delivered on 14th January, 2024.
14. Under Order 42 Rule 13 of the Civil Procedure Rules, the law provides that the following documents are obligatory when compiling and/or preparing a Record of Appeal:
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.
15. I have above emphasized by underlining documents which, though required to be part of the record of appeal, were omitted by the Appellants.
16. Under Order 42 rule 13(4)(ii) of the Civil Procedure Rules, this court 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). That then means that the documents in (a), (b) and (f) must mandatorily form part of the Record of Appeal.
17. With regard to the appeal before me, I have above stated that the pleadings, the Notice of Motion dated 17th December, 2024, the affidavit in support thereof, the supplementary affidavit, the replying affidavit filed in opposition to the application and preliminary objection dated 23rd December, 2024, are documents that were relied upon by the trial court as forming the genesis of the ruling and orders that are being appealed. Those documents cannot therefore be among those the court would apply its discretion to dispense with under Order 42 rule 13(4)(ii), for the simple reason that they form the foundation of this appeal.
18. What way then, for this appeal, that does not include documents that must form part of the Record of Appeal?
19. While dealing with a related issue and the above provisions of the Civil Procedure Rules, I stated as follows in the case of Njiriri v David Mugo Maina t/a Jomka Transporters (Civil Appeal E176 of 2021) [2024] KEHC 7232 (KLR) (20 June 2024) (Judgment)
Order 42 Rule 13 of the Civil Procedure Rules makes provisions on the documents that must mandatorily form part of the record of appeal, which include the order or decree appealed from.
The questions that then call for answers are; how is an appeal that fails to include the order appealed from to be treated? Is there a valid appeal in such a situation?
The answers to these questions are to be found, happily, in a number of previous judicial pronouncements of superior courts.
In the case of Lucas Otieno Masaye v Lucia Olewe Kidi [2022] eKLR Ombwayo, J. stated thus:
“It was the Respondent’s submission that failure by the Appellant to attach a decree to the record of appeal was fatal to his case. A look at the record of appeal clearly shows that a decree has not been attached thereto.
Order 42 Rule 2 of the Civil Procedure Rules provides as follows:
“Where no certified copy of the decree or order appealed against is filed with the Memorandum of Appeal, the Appellant shall file such certified copy as soon as possible and in any event within such a time as the court may order, and the court need not consider whether to reject the Appeal summarily under Section 79B of Act until a copy is filed.”
Order 42, Rule 13(4)(f) of the Civil Procedure Rules, 2010 provides;
“(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 Supreme Court of Kenya, in the case of Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others [2015] eKLR held as follows at paragraph 41:
“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 Court of Appeal in Chege v Suleiman [1988] eKLR firmly stated that the issue of failure to attach the decree is a jurisdictional point, and held thus:
“But we concur positively in the submission of Mr Lakha that this is not a procedural but a jurisdictional point. Those holdings were founded on a proper interpretation of Section 66 of the Civil Procedure Act which confers a right of appeal from the High Court to this Court from “decrees and orders of the High Court”. And those holdings were predicated on the fact that since the appeal could only lie against a decree or order, no competent appeal could be brought unless those decrees or orders were formally extracted as the basis of the appeal.” (Note the emphasis)
In conclusion, Ombwayo, J. held that an appeal is rendered fatally defective where the decree or order appealed from is not part of the record of appeal. The Court proceeded to strike out the Appeal with costs to the Respondent.
In the case of Floris Pierro & another v Giancarlo Falasconi (as the administrator of the estate of Santuzza Billioti alias Mei Santuzza) [2014] eKLR the Court of Appeal made the following observations:
“It is common ground that the appellants filed their respective records of appeal on 10th April, 2012. It is also common ground that in the said records, the appellants failed or omitted to incorporate certified copies of the order appealed against as required by Rule 87(1)(h) of this Court's Rules. An order appealed from is a primary document in terms of the aforesaid rule which must form part and parcel of the record of appeal. The order embodies the Court's decision. If it is not included, the Court of Appeal will be at a loss in determining what the High Court determined. It cannot be the business of this Court to tooth-comb the judgment or ruling so as to decipher the decision of the court below. That decision must be embodied in the order and or decree. Accordingly failure to include the court order or decree would render the record of the appeal to be fatally defective and liable to be struck out.”
While addressing the same issue, L. N. Mugambi, J in the case of Mburu & 6 others v Kirubi (Civil Appeal E246 of 2021) [2023] KEHC 3599 (KLR) (20 April 2023) (Judgment) stated as follows:
“My appreciation of the said Order 42 Rule 13(4)(f) of the Civil Procedure Rules and the cited decision of the Supreme Court is that an appeal that lacks the legally specified documents is incompetent in law.”
In the case of Chege v Suleiman [1988] eKLR the Court of Appeal stated that failure to attach the decree or order to a record of appeal is a jurisdictional one. It rendered itself thus:
“But we concur positively in the submission of Mr. Lakha that this is not a procedural but a jurisdictional point. Those holdings were founded on proper interpretation of Section 66 of the Civil Procedure Act, which confers a right of appeal from the High Court to this court from “decrees or orders of the High Court”. And the holdings were predicated on the fact that since the appeal could only lie against a decree or order, no competent appeal could be brought unless those decrees orders were formerly extracted as the basis of the appeal.” (Emphasis).
Finally, in the case of Bwana Mohamed Bwana v Siluano Buko Bonaya & 2 others [2015] eKLR, the supreme Court of Kenya expressed itself as follows:
“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 it 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.” (Emphasis).
The above decisions guide me in reaching the finding that where the decree or order appealed from does not form part of the record of appeal, the record of appeal filed is incomplete and fatally defective as such an appeal divests a court of the jurisdiction to consider factual or legal controversies embodied in the relevant issues.
I have confirmed by perusing the record of appeal that the Appellant did not extract and attach the formal order against which the instant appeal has been preferred. The same does not form part of the record of appeal. Guided by the ratio in the authorities above, I can only reach the finding that the instant appeal is fatally defective.
20. Although in the above case I was dealing with the issue of failure by an Appellant to include the decree or order appealed from, the reasoning applies to all the documents that must mandatorily be included in the record of appeal, hence relevant to this matter.
D. DISPOSITION.
21. We have seen above that the Notice of Motion dated 17th December, 2024, the affidavit in support thereof, the supplementary affidavit, the replying affidavit filed in opposition to the application and preliminary objection dated 23rd December, 2024, which are all documents that the trial court considered before rendering the ruling and orders that are being appealed from were not included in the Record of Appeal. We have also seen that all these documents were necessary and ought to have been part of the Record of Appeal.
22. As I am still of the persuasion that I expressed in the above authority, it follows then that the appeal filed herein is incompetent and fatally defective. It would be preposterous to proceed to look into the merits of the same.
23. In the result, the appeal is hereby struck out with costs to the Respondents.
24. That then paves way for the matter before the trial court to proceed apace. A copy of this ruling shall be placed in the trial court’s file.
Delivered (virtually), Dated & Signed this 11th day of March, 2025.
JOE M. OMIDO
JUDGE
FOR THE APPELLANTS: Mr. Oriwa.
FOR THE RESPONDENTS: Ms. Ashioya.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.