JUDGEMENT
1. This is an Appeal arising from the judgment and decree rendered by Hon. O. Wanyaga, Senior Resident Magistrate , on the 6th day of December, 2023, in Thika Chief Magistrate’s Court Civil Case No. 306 of 2021— John Macharia Ng’ang’a alias John Macharia Nganga vs. Peter Mungara Mwaura & Another in respect to the Appellants’ appeal dated the 24th January 2024.
Background Facts
2. The Appellants’ Memorandum of Appeal adduces the following grounds of appeal:
a) THAT the learned trial magistrate erred in fact and in law and misdirected himself in finding that the Respondent is entitled to: General damages of Kshs. 900,000/=, Special damages of Kshs. 190,830/=, and General damages of Kshs. 250,000/= for diminished earning capacity, with costs and interest.
b) THAT the trial magistrate erred in law and in fact and misdirected himself by failing to consider the Appellants’ submissions on both points of law and fact.
c) THAT the learned trial magistrate misdirected himself by ignoring the principles applicable in the awarding of quantum of damages and relevant authorities on quantum cited in the written submissions filed by the Appellants.
d) THAT the learned trial magistrate proceeded on wrong principles when assessing the damages to be awarded to the Respondent, failing to apply precedents and applicable legal tenets.
e) THAT the learned trial magistrate failed to apply himself judicially and did not adequately evaluate the evidence and exhibits tendered on quantum, thereby arriving at a decision unsustainable in law.
f) THAT the learned magistrate erred in law and fact in arriving at the said decision.
g) THAT the learned trial magistrate’s decision was unjust, being against the weight of evidence, and was based on misdirected points of fact and wrong legal principles, occasioning a miscarriage of justice.
h) THAT the learned trial magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.
3. In the said judgment, the learned Trial Magistrate entered judgment in favour of the Plaintiff, now the Respondent, against the Defendants, the Appellants herein. In the judgment delivered on the 06.12.2023, the Learned Magistrate found the Appellants 100% liable. He awarded Kshs. 900, 000/= as general damages for pain, suffering, and loss of amenities; Kshs. 250, 000/= as general damages for diminished earning capacity, and Kshs. 190, 830/= as special damages.
4. The Appeal was scheduled under the Rapid Results Initiative (RRI) and directions were issued for the parties to file written submissions. The Court was unable to deliver this decision on time due to time constraints and other exigencies of life. Counsel were kept informed. The Court apologizes for any inconvenience to the parties herein.
5. This Court has duly considered the written submissions filed by the Respondent dated 4th December 2024 — together with the authorities cited therein. The Court commends Learned Counsel for their diligence and industry in the research and presentation of their respective case. This Court however notes with disappointment that as at the lapse of the seven days granted on 5th December, 2024, the Appellants had neither filed the Supplementary Record of Appeal nor their submissions. Indeed, as at 04.12.2024 when the Respondent was filed his submissions, neither the supplementary Record of Appeal or the Appellant’s submissions had been filed. This matter was mentioned in Court virtually on 6th December, 2024 in the presence of Counsel for the Respondent. Counsel for the Appellants did not appear or send any representative. The Appeal was reserved for Judgement. It is against this background of non-compliance that the Court is called upon to determine this Appeal.
Issues For Determination
6. Having considered the material placed before this Honourable Court, the Court frames but a single issue for determination.
a) Whether the Appeal before the Court is competent.
Analysis
7. The present Appeal arises from the judgment and decree delivered by Hon. O. Wanyaga, Senior Resident Magistrate , on 6th December 2023, in Thika Chief Magistrate’s Court Civil Case No. 306 of 2021 .
a) Whether the Appeal before the Court is competent.
8. It is noteworthy that the proceedings before the Trial Court—which would ordinarily include the evidentiary record presented by the parties—have not been included in the Record of Appeal filed by the Appellants. Consequently, this Court has neither seen nor had the benefit of perusing the said proceedings. The Record of Appeal is therefore incomplete, rendering the appeal fatally defective and incompetent.
9. In Atemba & another v Ndula (Civil Appeal E716 of 2023) [2024] KEHC 9312 (KLR) (Civ) (11 July 2024) (Judgment), the High Court reaffirmed the principle that an Appeal founded on an incomplete record, particularly one lacking the Trial Court proceedings, is incompetent and liable to be struck out. The Court stated:
“As per Section 66 of the Civil Procedure Act, an appeal to this Court can only lie against a Decree or an Order and no competent appeal can be brought to this Court unless such a Decree or Order is extracted and included in the Record of Appeal. The case of Chege V Suleiman, [1988] eKLR makes clear than an appeal is fatally defective due to the absence of the Decree. Noting that the impugned Judgment of the Trial Court is also absent, the present Appeal is similar to the situation in South Nyanza Sugar Company Limited V Bitengo, [2022] KEHC 11440 (KLR), where at Paragraphs 34 and 35 of the Judgment of Wendoh J the Court held that:
“34.There is no other step that this court can take since, in the absence of a complete and proper record of appeal, it is devoid of jurisdiction. 35.I therefore strike out the appeal with costs to the respondent.”
10. In circumstances analogous to the present matter, the Court in Ready Consultancy Co. Ltd v Charo & another (Appeal E037 of 2022) [2024] KEELRC 166 (KLR) (8 February 2024) (Judgment) held as follows:
“There is no evidence before this Court for its review, re-evaluation and consideration, this being a first appeal. As stated in Mursal -vs Manese [2022] eKLR:-
“A first Appellate Court is mandated to re-evaluate the evidence presented before the trial Court as well as the judgment and to arrive at its own independent judgment on whether or not to allow the appeal. A first Appellate Court is empowered to subject the whole of the evidence to fresh and exhaustive scrutiny and to make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & Another -vs- Associated Motor Boat Co. Ltd & Another [1968] E.A. 123 And In Peters -vs- Sunday Post Ltd [1958] E.A. page 424.”
11. It is a well-settled procedural requirement that a Memorandum of Appeal must be accompanied by a copy of the proceedings, all documentary evidence relied upon, and a copy of the judgment arising from the matter being appealed. The law further provides that, where the proceedings are not filed together with the memorandum of appeal, the Appellants are required to file the same as soon as practicable and in any event within a reasonable time.
12. The centrality of Trial Court proceedings to a first Appeal was emphasized in Mwai v Muita & 4 others (Environment and Land Appeal E010 of 2023) [2025] KEELC 3092 (KLR) (2 April 2025) (Judgment), where the Court—while reaffirming the holding in Ready Consultancy Co. Ltd v Charo & another (Appeal E037 of 2022) [2024] KEELRC 166 (KLR) (8 February 2024) (Judgment)—observed that:
“In any first appeal, proceedings of the trial Court are so pivotal such that the merits or otherwise of the appeal cannot be considered or determined without them. In the absence of the trial Court’s proceedings, there is absolutely nothing on record for this Court, being a first appellate Court, to review, to re-evaluate and to consider in determining the merits or otherwise of the appeal herein. The appeal is hollow and incompetent and must, therefore, fail.”
13. For the record, it is noteworthy that while the Memorandum of Appeal was filed on 24th January 2024, the incomplete Record of Appeal was only filed on 30th August 2024—more than seven months later. However, this was still without the proceedings of the Trial Court. The Appellants had ample time to compile and present a complete Record of Appeal. Yet, ten months down the line, and at the point of judgment being due in this matter, no effort had been made to cure the defect.
14. The position is further fortified by the reasoning of Mrima J in Trans Mara Sugar Co. Ltd v James Omondi Obudho [Migori HCCA No. 80 of 2018], wherein the Court concluded as follows:
“23.I will also add my voice on the subject. First, from the reading of Section 65(1) of the Act it is the decree or part thereof that is appealed from the subordinate court to the High Court. Second, under Order 42 Rule 13(4) of the Rules a Court may dispense with any document to be part of the Record of Appeal except the memorandum of appeal, the pleadings and the judgment, order or decree appealed from and in appropriate cases the order giving leave to appeal. Third, the saving grace under Article 159(2)(d) of the Constitution is inapplicable in this case. That is because the provision only applies to matters relating to procedure or form and not the substance thereof. Fourth, despite clear provisions on extension of time the Appellant never sought for any extension of time to file the decree neither did it explain any difficulty in obtaining the decree. The appeal was filed around 60 days post the delivery of the judgment appeal against. That was clearly out of the stipulated time.
24.The Record of Appeal is therefore incomplete. In the words of the Supreme Court in Civil Application No. 20 of 2014 Bwana Mohamed Bwana (supra) ‘such an appeal would be incomplete and hence incompetent.’25. Having said so, there is no competent appeal for consideration. The appeal is therefore struck out with costs.”
15. The Court has also taken note of the provision of Order 42 Rule 13 of the Civil Procedure Rules. The Rule leaves no doubt as to the documents that must be contained in the Record of Appeal as follows, (underlined emphasis ours);
13. Directions before hearing [Order 42, rule 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)
16. The use of the word “shall” in the Rule above, means the Court has no wriggle room in admitting and hearing an Appeal comprised of an incomplete Record of Appeal.
17. The Court is not persuaded that the Appellants were keen on prosecuting this Appeal.
18. As to costs, the same follow the event. The Respondent has been keen in opposing the Appeal. They filed their submission. They are therefore awarded the costs of the Appeal.
Determination
19. In view of the foregoing, the upshot of this Court’s findings is that the Appeal is invalid for want of a complete Record of Appeal. Accordingly, and upon consideration of the written submissions filed on behalf of the Respondent, the Appeal is hereby dismissed.
20. The costs of the Appeal are awarded to the Respondent.
DATED, SIGNED AND DELIVERED AT THIKA THIS 7TH DAY OF AUGUST, 2025
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Mr. Kabita for the Appellants
Mr. Mutua for the Respondent.
Susan Nzioka – Court Assistant
1. This is an Appeal arising from the judgment and decree rendered by Hon. O. Wanyaga, Senior Resident Magistrate , on the 6th day of December, 2023, in Thika Chief Magistrate’s Court Civil Case No. 306 of 2021— John Macharia Ng’ang’a alias John Macharia Nganga vs. Peter Mungara Mwaura & Another in respect to the Appellants’ appeal dated the 24th January 2024.
Background Facts
2. The Appellants’ Memorandum of Appeal adduces the following grounds of appeal:
a) THAT the learned trial magistrate erred in fact and in law and misdirected himself in finding that the Respondent is entitled to: General damages of Kshs. 900,000/=, Special damages of Kshs. 190,830/=, and General damages of Kshs. 250,000/= for diminished earning capacity, with costs and interest.
b) THAT the trial magistrate erred in law and in fact and misdirected himself by failing to consider the Appellants’ submissions on both points of law and fact.
c) THAT the learned trial magistrate misdirected himself by ignoring the principles applicable in the awarding of quantum of damages and relevant authorities on quantum cited in the written submissions filed by the Appellants.
d) THAT the learned trial magistrate proceeded on wrong principles when assessing the damages to be awarded to the Respondent, failing to apply precedents and applicable legal tenets.
e) THAT the learned trial magistrate failed to apply himself judicially and did not adequately evaluate the evidence and exhibits tendered on quantum, thereby arriving at a decision unsustainable in law.
f) THAT the learned magistrate erred in law and fact in arriving at the said decision.
g) THAT the learned trial magistrate’s decision was unjust, being against the weight of evidence, and was based on misdirected points of fact and wrong legal principles, occasioning a miscarriage of justice.
h) THAT the learned trial magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.
3. In the said judgment, the learned Trial Magistrate entered judgment in favour of the Plaintiff, now the Respondent, against the Defendants, the Appellants herein. In the judgment delivered on the 06.12.2023, the Learned Magistrate found the Appellants 100% liable. He awarded Kshs. 900, 000/= as general damages for pain, suffering, and loss of amenities; Kshs. 250, 000/= as general damages for diminished earning capacity, and Kshs. 190, 830/= as special damages.
4. The Appeal was scheduled under the Rapid Results Initiative (RRI) and directions were issued for the parties to file written submissions. The Court was unable to deliver this decision on time due to time constraints and other exigencies of life. Counsel were kept informed. The Court apologizes for any inconvenience to the parties herein.
5. This Court has duly considered the written submissions filed by the Respondent dated 4th December 2024 — together with the authorities cited therein. The Court commends Learned Counsel for their diligence and industry in the research and presentation of their respective case. This Court however notes with disappointment that as at the lapse of the seven days granted on 5th December, 2024, the Appellants had neither filed the Supplementary Record of Appeal nor their submissions. Indeed, as at 04.12.2024 when the Respondent was filed his submissions, neither the supplementary Record of Appeal or the Appellant’s submissions had been filed. This matter was mentioned in Court virtually on 6th December, 2024 in the presence of Counsel for the Respondent. Counsel for the Appellants did not appear or send any representative. The Appeal was reserved for Judgement. It is against this background of non-compliance that the Court is called upon to determine this Appeal.
Issues For Determination
6. Having considered the material placed before this Honourable Court, the Court frames but a single issue for determination.
a) Whether the Appeal before the Court is competent.
Analysis
7. The present Appeal arises from the judgment and decree delivered by Hon. O. Wanyaga, Senior Resident Magistrate , on 6th December 2023, in Thika Chief Magistrate’s Court Civil Case No. 306 of 2021 .
a) Whether the Appeal before the Court is competent.
8. It is noteworthy that the proceedings before the Trial Court—which would ordinarily include the evidentiary record presented by the parties—have not been included in the Record of Appeal filed by the Appellants. Consequently, this Court has neither seen nor had the benefit of perusing the said proceedings. The Record of Appeal is therefore incomplete, rendering the appeal fatally defective and incompetent.
9. In Atemba & another v Ndula (Civil Appeal E716 of 2023) [2024] KEHC 9312 (KLR) (Civ) (11 July 2024) (Judgment), the High Court reaffirmed the principle that an Appeal founded on an incomplete record, particularly one lacking the Trial Court proceedings, is incompetent and liable to be struck out. The Court stated:
“As per Section 66 of the Civil Procedure Act, an appeal to this Court can only lie against a Decree or an Order and no competent appeal can be brought to this Court unless such a Decree or Order is extracted and included in the Record of Appeal. The case of Chege V Suleiman, [1988] eKLR makes clear than an appeal is fatally defective due to the absence of the Decree. Noting that the impugned Judgment of the Trial Court is also absent, the present Appeal is similar to the situation in South Nyanza Sugar Company Limited V Bitengo, [2022] KEHC 11440 (KLR), where at Paragraphs 34 and 35 of the Judgment of Wendoh J the Court held that:
“34.There is no other step that this court can take since, in the absence of a complete and proper record of appeal, it is devoid of jurisdiction. 35.I therefore strike out the appeal with costs to the respondent.”
10. In circumstances analogous to the present matter, the Court in Ready Consultancy Co. Ltd v Charo & another (Appeal E037 of 2022) [2024] KEELRC 166 (KLR) (8 February 2024) (Judgment) held as follows:
“There is no evidence before this Court for its review, re-evaluation and consideration, this being a first appeal. As stated in Mursal -vs Manese [2022] eKLR:-
“A first Appellate Court is mandated to re-evaluate the evidence presented before the trial Court as well as the judgment and to arrive at its own independent judgment on whether or not to allow the appeal. A first Appellate Court is empowered to subject the whole of the evidence to fresh and exhaustive scrutiny and to make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & Another -vs- Associated Motor Boat Co. Ltd & Another [1968] E.A. 123 And In Peters -vs- Sunday Post Ltd [1958] E.A. page 424.”
11. It is a well-settled procedural requirement that a Memorandum of Appeal must be accompanied by a copy of the proceedings, all documentary evidence relied upon, and a copy of the judgment arising from the matter being appealed. The law further provides that, where the proceedings are not filed together with the memorandum of appeal, the Appellants are required to file the same as soon as practicable and in any event within a reasonable time.
12. The centrality of Trial Court proceedings to a first Appeal was emphasized in Mwai v Muita & 4 others (Environment and Land Appeal E010 of 2023) [2025] KEELC 3092 (KLR) (2 April 2025) (Judgment), where the Court—while reaffirming the holding in Ready Consultancy Co. Ltd v Charo & another (Appeal E037 of 2022) [2024] KEELRC 166 (KLR) (8 February 2024) (Judgment)—observed that:
“In any first appeal, proceedings of the trial Court are so pivotal such that the merits or otherwise of the appeal cannot be considered or determined without them. In the absence of the trial Court’s proceedings, there is absolutely nothing on record for this Court, being a first appellate Court, to review, to re-evaluate and to consider in determining the merits or otherwise of the appeal herein. The appeal is hollow and incompetent and must, therefore, fail.”
13. For the record, it is noteworthy that while the Memorandum of Appeal was filed on 24th January 2024, the incomplete Record of Appeal was only filed on 30th August 2024—more than seven months later. However, this was still without the proceedings of the Trial Court. The Appellants had ample time to compile and present a complete Record of Appeal. Yet, ten months down the line, and at the point of judgment being due in this matter, no effort had been made to cure the defect.
14. The position is further fortified by the reasoning of Mrima J in Trans Mara Sugar Co. Ltd v James Omondi Obudho [Migori HCCA No. 80 of 2018], wherein the Court concluded as follows:
“23.I will also add my voice on the subject. First, from the reading of Section 65(1) of the Act it is the decree or part thereof that is appealed from the subordinate court to the High Court. Second, under Order 42 Rule 13(4) of the Rules a Court may dispense with any document to be part of the Record of Appeal except the memorandum of appeal, the pleadings and the judgment, order or decree appealed from and in appropriate cases the order giving leave to appeal. Third, the saving grace under Article 159(2)(d) of the Constitution is inapplicable in this case. That is because the provision only applies to matters relating to procedure or form and not the substance thereof. Fourth, despite clear provisions on extension of time the Appellant never sought for any extension of time to file the decree neither did it explain any difficulty in obtaining the decree. The appeal was filed around 60 days post the delivery of the judgment appeal against. That was clearly out of the stipulated time.
24.The Record of Appeal is therefore incomplete. In the words of the Supreme Court in Civil Application No. 20 of 2014 Bwana Mohamed Bwana (supra) ‘such an appeal would be incomplete and hence incompetent.’25. Having said so, there is no competent appeal for consideration. The appeal is therefore struck out with costs.”
15. The Court has also taken note of the provision of Order 42 Rule 13 of the Civil Procedure Rules. The Rule leaves no doubt as to the documents that must be contained in the Record of Appeal as follows, (underlined emphasis ours);
13. Directions before hearing [Order 42, rule 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)
16. The use of the word “shall” in the Rule above, means the Court has no wriggle room in admitting and hearing an Appeal comprised of an incomplete Record of Appeal.
17. The Court is not persuaded that the Appellants were keen on prosecuting this Appeal.
18. As to costs, the same follow the event. The Respondent has been keen in opposing the Appeal. They filed their submission. They are therefore awarded the costs of the Appeal.
Determination
19. In view of the foregoing, the upshot of this Court’s findings is that the Appeal is invalid for want of a complete Record of Appeal. Accordingly, and upon consideration of the written submissions filed on behalf of the Respondent, the Appeal is hereby dismissed.
20. The costs of the Appeal are awarded to the Respondent.
DATED, SIGNED AND DELIVERED AT THIKA THIS 7TH DAY OF AUGUST, 2025
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Mr. Kabita for the Appellants
Mr. Mutua for the Respondent.
Susan Nzioka – Court Assistant