Sikh Saw Mills Ltd. v. Mtwara /Mikindani Town Council, Civ. App. 3-D-71; 14/4/72; Mwakasendo Ag. J.

Sikh Saw Mills Ltd. v. Mtwara /Mikindani Town Council, Civ. App. 3-D-71; 14/4/72; Mwakasendo Ag. J.

A preliminary objection was raised that this appeal was not properly brought because the appellant had in violation of O. 40, r. 2, C.P.C. 1966, failed to file a copy of the ruling of the lower court with his memorandum of appeal. The appellant then asked to be allowed to submit a certified copy of the ruling claiming that at the time of the preparation of the appeal it was not available because of disorganization in the Registry office.

            Held: (1)”In [Kunar Arap Rono v. Dhanjal (1966) E.A.184] the appellant had sued the respondent and his plaint was struck out and his claim dismissed by the Magistrate. On appeal as of right to the High Court of Kenya a certified copy of the decree or order was not filed with the memorandum of appeal as required by O. 41, r. 1 of the Civil Procedure (Revised) Rules, 1948, and a preliminary objection was taken by the respondent that the appeal was incompetent. The Kenya High Court making a ruling on the issue held: “The definition of the word “decree” in S. 2 of the Civil Procedure Act includes the rejection of a

Plaint and the proviso in the section provide that “decree” shall include judgment and that a formal decree in pursuance of such judgment may not have been drawn up, accordingly the appeal was competent”. I must confess that I have not found it easy to understand the reasoning behind the Kenya High Court’s decision in this case. The decision itself would appear to go against all the decided authorities of this Court, and those of the High Courts of Kenya and India. In Munshiram and Co. v. Star Soda Water Factory (1934) 16 K.L.R. 50, an appeal was preferred to the Supreme Court of Kenya from an order made by the Resident Magistrate. The memorandum of appeal had attached to it a certified copy of the judgment or ruling of the Magistrate, but no certified copy of the order appealed from had been included, such order never having been drawn up. The Supreme Court had no hesitation in finding that a copy of the formal order is a part of the papers to be filed when initiating an appeal and rejected the argument of the appellant that no formal order was usual or necessary; the appeal was consequently dismissed. In the face of all these sound decisions of the High Courts of Kenya, India and Tanganyika, I would, with the greatest respect to counsel for the appellant, be disinclined to follow the decision in the Kuna Arap Rono case. In fact the case does not appear to have been fully argued and there is hardly any reference to any of the decided cases bearing on the question at issue. Having regard to the wealth of authority on the other side, I have grave doubts whether Kuna Arap Rono was rightly decided. In any case, I am satisfied that that Kuna Arap Rono was dealing with a situation completely different from that of the present case and therefore the decision in that case cannot be considered as authority in the instant case.” (2)”As already stated, for a proper preference of his appeal to be made, appellant had to comply with the mandatory provisions of 0.39, r. 1 which require every memorandum of appeal to be accompanied by a copy of the decree or order appealed from. The appellant failed to comply with this provision. He had however asked to Court to receive a certified copy of the ruling now and the question is whether this court can properly do so. I do not think this court can properly entertain an application by the appellant to produce in the course of the hearing of the appeal, a certified copy of the ruling which as indicated, ought to have accompanied the memorandum at the time of filing. The rule says emphatically ‘the memorandum shall be accompanied by a copy of the decree appealed from and (unless the court dispenses therewith) of the judgment on which it is founded’.”