1.The parties herein participated in Kapenguria Senior Principal Magistrate's Court Civil Suit No. 21 of 2021 Naita Construction Co. Ltd vs. Frontiers Children Development Organization (hereinafter referred to as ‘the suit’).
2.The Appellant herein was the Defendant in the suit whereas the Respondent was the Plaintiff. The suit was in respect of breach of a contract. The Plaintiff prayed for a declaration for the breach of the contract, specific performance, damages and interest.
3.The suit was determined by the judgment rendered on 3rd February, 2022. In the judgment, the then Plaintiff’s claim against the Defendant was allowed as prayed further to an award of Kshs. 200,000/= as general damages for breach of the contract.
4.Dissatisfied with the judgment, the Defendant lodged the appeal subject of this judgment. The Defendant in the suit is now the Appellant in this appeal.
5.The appeal was heard by way of written submissions which parties duly complied.
6.This Court has carefully perused and understood the record of appeal, the judgment appealed against and the parties’ submissions.
7.In the course of the Court satisfying itself on the proprietress of the appeal, it downed that there was a glaring anomaly on the Record of Appeal. Although the issue was not taken up by the parties, this Court will still deal with it as it goes to the substance and competency of the appeal thereby impugning the jurisdiction of this Court.
8.The issue is the absence of the formal extracted decree in the record.
9.This Court has, despite diligence, did not come across the decree in the record of appeal as well as in the trial Court record. Further, the Index in the Record of Appeal did not also indicate that the record contained the decree.
10.That being the position, I will now deal with the effect of the absence of the formal extracted decree to the appeal.
11.Appeals to the High Court from judgments and decrees are provided for in Section 65 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules.
12.Order 42 Rule 1 of the Civil Procedure Rules provide that an appeal to the High Court shall be in the form of a Memorandum of Appeal signed in the same manner as a pleading.
13.Once an appeal is lodged aforesaid, a Record of Appeal is then filed. The contents of the Record of Appeal are provided for in Order 42 Rule 13(4) of the Rules as follows: -
14.A Record of Appeal is essentially supposed to be complete with all necessary documents. Courts have severally dealt with cases of incompleteness of Records of Appeal.
15.The Supreme Court of Kenya in Civil Application No. 20 of 2014 Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others (2014) eKLR referred to its earlier finding in Law Society of Kenya vs Centre for Human Rights and Democracy & Others, Supreme Court Petition No. 14 of 2013 where it held as follows: -
16.The Court further held, at paragraph 39, that:
17.Ngaah, J in Nyeri High Court Civil Appeal No. 51 of 2013 Ndegwa Kamau t/a Sideview Garage v Fredrick Isika Kalumbo (2016) eKLR dealt with how the Court of Appeal in Kyuma vs Kyema (1988) KLR 185 dealt with the interpretation of Section 79G of the Civil Procedure Act.
18.The Court of Appeal held as follows: -
19.Sitati, J in Kakamega Election Petition Appeal No. 3 of 2018 Elvis Anyimbo Sichenga v Orange Democratic Movement & 4 Others (2016) eKLR dealt with the same issue in an election petition appeal from the surbodinate Court. In that appeal the Record of Appeal did not include the decree of the judgment appealed against. The Learned Judge held as follows: -
20.This Court will also add its voice on the subject. First, under Order 42 Rule 13(4) of the Civil Procedure 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. Second, 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. Third, despite the mandatory provisions on the filing of the decree in issue, the Appellant did not explain any difficulty in obtaining the extracted decree.
21.From the foregoing, the Record of Appeal is, therefore, incomplete for want of the formal extracted decree arising from the judgment of the trial Court delivered on 3rd February, 2022. In the words of the Supreme Court in Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others case (supra) ‘such an appeal would be incomplete and hence incompetent.’ The result is that the jurisdiction of this Court has not been properly invoked.
22.Having said so, the upshot is that there is no competent appeal for consideration. The appeal is, hence, struck out with costs.