1. This appeal emanates from the judgement and decree of Hon. G.C. Serem, Resident Magistrate delivered on 25th May, 2023 in Kisumu CMCC No. 150 of 2015.
2. The grounds of appeal presented by the Appellants vide the Memorandum of Appeal dated 18th October, 2023 upon which they seek to upset the judgement and decree of the lower court are as follows:
i. The learned Magistrate erred in law and in fact in holding the Appellants 100% liable for the occurrence of the accident.
ii. The learned Magistrate erred in law and in fact in awarding damages in favour of the Plaintiff without any legal and/or evidential justification.
iii. The learned Magistrate erred in law and in fact in failing to take into consideration the submissions by the Defendants more so that the Plaintiff filed a frivolous claim.
iv. The learned Magistrate erred in law and in fact in failing to appreciate the long-established principle of stare decisis, bringing law into confusion and thereby deriving an erroneous finding/conclusion.
v. The learned Magistrate erred in law and in fact in awarding Ksh.200,000/- as general damages without any legal and/or evidential justification.
vi. The learned Magistrate erred in law and in fact in failing to appreciate as follows:
- That the evidence adduced in support of the Plaintiff’s case was incongruous with pleadings.
- That the Plaintiff’s pleadings and the evidence tendered in support thereof was incapable of sustaining damages awarded.
vii. The learned Magistrate erred in law and in fact by awarding excessive damages beyond the scope of evidence and/or legal entitlement.
viii. The learned Magistrate erred in law and in fact in entering judgement in favour of the Plaintiff against the Defendant in spite of the Plaintiff’s miserable failure to establish his case.
3. The Appellants propose that the appeal be allowed and that this court sets aside the trial court’s judgement and decree and substitutes the same with an order for the dismissal of the suit before the trial court and/or reassesses the damages awarded by the trial court.
4. Although not raised by the Respondent, I cannot help noticing from the record of appeal that the Appellants have not included in it a copy of the judgement or the extracted certified and signed decree of the lower court from which the instant appeal emanates. The proceedings of the trial court are also not included in the record of appeal.
5. 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 copies of the judgement and decree appealed from and the proceedings of the court from which the appeal is preferred. Let us read the said provision:
13. Directions before hearing [Order 42, rule 13.]
(1) Upon notice to the parties delivered not less than twenty-one days after the date of service of the memorandum of appeal the registrar 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) (b) (c) (d) (e) (f)
(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,
(g) 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).
(Underlined emphasis).
6. The questions that then call for answers are; how is an appeal that fails to include the judgement and decree appealed from, and the proceedings or notes of the trial Magistrate made at the hearing, to be treated? Is there a valid appeal in such a situation?
7. The answers to these questions are to be found, happily, in a number of previous judicial pronouncements of superior courts.
8. 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.”
(Underlined emphasis).
9. 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.
10. 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.”
11. 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.”
12. 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.”
(Underlined emphasis).
13. 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.”
(Underlined emphasis).
14. The above decisions guide me in reaching the finding that where the judgement and decree 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.
15. I have confirmed by perusing the record of appeal that the Appellant did not extract and attach the formal decree or copy of the judgement against which the instant appeal has been preferred. The same does not form part of the record of appeal.
16. It is instructive, under Order 42 Rule 13(4)(g)(ii) of the Civil Procedure Rules that while the court has discretion to dispense with the proceedings of the trial court (among other documents) in a record of appeal, no such discretion is available with regard to the failure to include in a record of appeal a copy of the judgement and/or decree appealed from. Guided by the ratio in the authorities above, I can only reach the finding that the instant appeal is fatally defective. I proceed to strike it out in its entirety.
17. With regard to costs, Section 27 of the Civil Procedure Act dictates that the same shall follow the event. To that end, the Appellants shall jointly and severally bear the Respondent’s costs of this appeal, which I assess at Ksh.30,000/-.
18. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 3rd day of July, 2025.
JOE M. OMIDO.
JUDGE
FOR APPELLANT: Mr. Ombese.
FOR RESPONDENT: Ms. Okoth for Ms. Odieny.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
2. The grounds of appeal presented by the Appellants vide the Memorandum of Appeal dated 18th October, 2023 upon which they seek to upset the judgement and decree of the lower court are as follows:
i. The learned Magistrate erred in law and in fact in holding the Appellants 100% liable for the occurrence of the accident.
ii. The learned Magistrate erred in law and in fact in awarding damages in favour of the Plaintiff without any legal and/or evidential justification.
iii. The learned Magistrate erred in law and in fact in failing to take into consideration the submissions by the Defendants more so that the Plaintiff filed a frivolous claim.
iv. The learned Magistrate erred in law and in fact in failing to appreciate the long-established principle of stare decisis, bringing law into confusion and thereby deriving an erroneous finding/conclusion.
v. The learned Magistrate erred in law and in fact in awarding Ksh.200,000/- as general damages without any legal and/or evidential justification.
vi. The learned Magistrate erred in law and in fact in failing to appreciate as follows:
- That the evidence adduced in support of the Plaintiff’s case was incongruous with pleadings.
- That the Plaintiff’s pleadings and the evidence tendered in support thereof was incapable of sustaining damages awarded.
vii. The learned Magistrate erred in law and in fact by awarding excessive damages beyond the scope of evidence and/or legal entitlement.
viii. The learned Magistrate erred in law and in fact in entering judgement in favour of the Plaintiff against the Defendant in spite of the Plaintiff’s miserable failure to establish his case.
3. The Appellants propose that the appeal be allowed and that this court sets aside the trial court’s judgement and decree and substitutes the same with an order for the dismissal of the suit before the trial court and/or reassesses the damages awarded by the trial court.
4. Although not raised by the Respondent, I cannot help noticing from the record of appeal that the Appellants have not included in it a copy of the judgement or the extracted certified and signed decree of the lower court from which the instant appeal emanates. The proceedings of the trial court are also not included in the record of appeal.
5. 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 copies of the judgement and decree appealed from and the proceedings of the court from which the appeal is preferred. Let us read the said provision:
13. Directions before hearing [Order 42, rule 13.]
(1) Upon notice to the parties delivered not less than twenty-one days after the date of service of the memorandum of appeal the registrar 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) (b) (c) (d) (e) (f)
(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,
(g) 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).
(Underlined emphasis).
6. The questions that then call for answers are; how is an appeal that fails to include the judgement and decree appealed from, and the proceedings or notes of the trial Magistrate made at the hearing, to be treated? Is there a valid appeal in such a situation?
7. The answers to these questions are to be found, happily, in a number of previous judicial pronouncements of superior courts.
8. 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.”
(Underlined emphasis).
9. 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.
10. 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.”
11. 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.”
12. 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.”
(Underlined emphasis).
13. 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.”
(Underlined emphasis).
14. The above decisions guide me in reaching the finding that where the judgement and decree 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.
15. I have confirmed by perusing the record of appeal that the Appellant did not extract and attach the formal decree or copy of the judgement against which the instant appeal has been preferred. The same does not form part of the record of appeal.
16. It is instructive, under Order 42 Rule 13(4)(g)(ii) of the Civil Procedure Rules that while the court has discretion to dispense with the proceedings of the trial court (among other documents) in a record of appeal, no such discretion is available with regard to the failure to include in a record of appeal a copy of the judgement and/or decree appealed from. Guided by the ratio in the authorities above, I can only reach the finding that the instant appeal is fatally defective. I proceed to strike it out in its entirety.
17. With regard to costs, Section 27 of the Civil Procedure Act dictates that the same shall follow the event. To that end, the Appellants shall jointly and severally bear the Respondent’s costs of this appeal, which I assess at Ksh.30,000/-.
18. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 3rd day of July, 2025.
JOE M. OMIDO.
JUDGE
FOR APPELLANT: Mr. Ombese.
FOR RESPONDENT: Ms. Okoth for Ms. Odieny.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.