REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

CIVIL APPEAL NO. E10 OF 2020

RENTWORKS EAST AFRICA LIMITED............APPELLANT

-VERSUS-

JENIFFER KINYA SIMON.................................RESPONDENT

R U L I N G

1. Before this court is an oral application by counsel for the respondent seeking an order that the appeal by the appellant be struck out for non-compliance with Order 42(2) of the Civil Procedure Rules. The Applicant contends that the appeal is not sustainable as the decree of the subordinate court was never filed.

2. The brief facts of this case are that the Appellant filed an appeal to this court on 28^th June 2021 after he was dissatisfied by the judgment of the Honourable J.M. Njoroge (C.M.) delivered on 7^th October 2020 in Chuka CMCC No. 144 of 2017.

3. On 9^th December 2021, the Respondent, through her advocate on record, orally applied to have the appeal struck out for non-compliance with Order 42 (2) of the Civil Procedure Rules. It is the Respondent’s contention that the appeal is not sustainable as the Appellant did not file the subordinate’s court decree.

It is important here to review the background under which this application was argued. The matter came up on 7/10/2021 when the court was not sitting. What was listed for hearing on that date was for the court to give directions on how the appeal would proceed. The counsel for the respondent took a date of 9/12/2021 at the High Court Civil Registry. A mention notice was supposed to issue to the counsel for the applicant who was not before the court.

In the meantime the counsel for the applicants wrote to the Deputy Registrar on 7/10/2021 requesting for a mention date as the court was not sitting on 7/10/2021.

I have not come across any evidence to show that the counsel for the applicant was served with a notice showing that the matter would come up for directions on 9/12/2021. Indeed the counsel for the respondent did not inform the court whether the applicant had been served. It is therefore clear that the applicant had not been notified of the proceedings of 9/12/2021. It is a rule of Natural Justice that a party should not be condemned unheard. Article 50(1) of the Constitution on the subject of fair hearing provides as follows:-

“(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”

Fairness connotes impartial and just treatment to parties who appear before the court or tribunal without favourism or discrimination. In short fairness calls for the court to do justice to all. A court of law must therefore ensure fairness to all the parties appearing before it.

In this case the counsel for the respondent argued an application to strike out the appeal without giving the applicant an opportunity to be heard. If the court were to allow the application it would adversely affect the applicant. Secondly the point argued was a point of law. No notice of Pre-liminary Objection had been served on the applicant. It is my view that it was not fair for the respondent to argue the application for striking out the appeal.

4. Be that as it may, I have perused the Appellant’s Record of Appeal dated 28^th June 2021 as well as the Supplementary Record of Appeal dated 6^th October 2021. In my view, the main issue for determination by this court is whether the appeal is sustainable in the absence of a certified copy of the decree from the subordinate court.

Analysis

5. Section 79G of the Civil Procedure Act provides as follows:-

“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery of a copy of the decree or order:

Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

6. From the above provision of the law, it is clear that a decree or order appealed from is a pertinent part of an appeal filed in the High court against a decision from a subordinate court. In effect, there is no appeal without the decree or order appealed from. For this reason, Section 79G of the Civil Procedure Act quoted above provides a window for extension of time to file the appeal if the decree or order could not, for one reason or another, be secured within the limitation period.

7. It therefore follows that the preparation and delivery of the decree or order for the purpose prescribed in Section 79G of the Civil Procedure Act is not a pastime which one may choose to overlook but rather it is a mandatory ritual without which no legitimate appeal can be said to have been lodged in the High Court against a decision of the subordinate court.

8. The significance of the decree or the order appealed against in an appeal to the High Court is also mirrored in Order 42 Rule 2 of the Civil Procedure Rules which 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 the court may order, and the court need not consider whether to reject appeal summarily under section 79B of Act until copy is filed.”

9. From the above provision, and as stated herein above, an appeal is incomplete without the order or decree appeal against. Order 42 Rule 13(4) of the Civil Procedure Rules 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 during 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, the 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).”

10. According to part(f)(ii) of the above Rule, this court has discretion to dispense with certain documents which may have been omitted from the record of appeal but it should certainly not overlook an order or decree appealed from.

11. In this case, the Appellant applied to be supplied with a copy of the judgment delivered on 7^th October 2020 vide a letter dated 12^th October 2020. It later filed a copy of the certified judgment vide its Supplementary Record of Appeal dated 6^th October 2021. In the said Supplementary Record of Appeal, the Appellant indicated that it would furnish a copy of the decree by the subordinate court later.

12. Whereas the rules of procedure are handmaidens of justice and play an important role in the administration of justice, they should not, in appropriate cases, impede the administration of substantial justice. Article 159(2) (d) of the Constitution of Kenya 2010 provides that: “justice shall be administered without undue regard to procedural technicalities.”

13. The Court has a discretion under Rule 35(1) to strike out a notice of appeal or appeal where an essential step has not been taken in the proceeding or has not been taken within a prescribed time. However, this discretion should be exercised judicially having regard to all the circumstances of the case.

14. In my view, the omission to include a certified decree can be cured by the filing of a supplementary record which act will not occasion any undue prejudice to the Respondent. Any prejudice likely to be suffered can be compensated by an award of costs.

Conclusion

15. In view of the foregoing, I find that the application is without merits and it is dismissed.

16. On costs since the applicant was not aware of the hearing date and the application was argued without notice, I make no orders as to costs.

DATED, SIGNED, DELIVERED AT CHUKA THIS 10^TH DAY OF FEBRUARY 2022. 

L.W. GITARI

JUDGE