Georege Gikubu Mbuthia v Housing Finance Company of Kenya Limited & 2 others [2018] KECA 86 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it only decides what you actually appealed against — everything else is outside its jurisdiction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal has jurisdiction to consider grounds and declaratory prayers falling outside the Ruling dated 8th July 2011 and the Notice of Appeal
- 2.Whether the trial judge erred in relying on the court record to find that costs had been awarded to the 3rd respondent without proof by affidavit
- 3.Whether the 3rd respondent's Bill of Costs dated 29th June 2007 ought to be struck out/dismissed
Key legal issues
#Scope of appellate jurisdiction as defined by the Notice of Appeal
The Court has no jurisdiction to entertain grounds or prayers outside the ruling appealed from; the jurisdiction is confined by the Notice of Appeal and Rule 104 of the Court's rules.
The Notice of Appeal expressly identified the Ruling of 8th July 2011 as the decision appealed against. Declaratory orders concerning the Rawal ruling, the earlier Court of Appeal judgment, alleged forgeries and the Eastleigh property were never part of that ruling. Grounds and prayers exceeding the Notice of Appeal are therefore outside the Court's competence and merit no consideration.
Proof of entries in the court record - sanctity of record
The court record speaks for itself and is prima facie proof of its correctness; no affidavit was required to prove the Deputy Registrar's order of 26th June 2007 awarding costs.
Invoking the concept of sanctity of record and Section 90 of the Evidence Act on presumption of genuineness of court reports, the Court held that what is endorsed on the court record is sacrosanct. The appellant neither alleged tampering nor challenged the authenticity of the entry recording withdrawal of the suit with costs; his prayer for a declaration of nullity was itself an admission that the order existed on record.
Procedure for challenging a Bill of Costs
A party objecting to a decision on a Bill of Costs must pursue a reference to a judge under paragraph 11 of the Advocates' Remuneration Order; the Court declined to dismiss the Bill of Costs because the proceedings did not arise from such a reference.
Citing Sound Entertainment Limited and Machira & Co. Advocates v Arthur K. Magugu, the Court noted that objection to a taxing officer's decision is by notice within fourteen days and application to a judge under paragraph 11. The record showed no reference to the High Court arising from taxation of the 3rd respondent's Bill of Costs, so the striking-out route adopted by the appellant was misconceived.
Legal principles established
#- The jurisdiction of the Court of Appeal is confined and defined by the Notice of Appeal; grounds of appeal raised outside the ambit of the Notice of Appeal do not merit consideration.
- The court record is prima facie proof of its own correctness; absent contestation of tampering or authenticity, no affidavit is needed to prove the contents of a court record.
- Objection to the decision of a taxing officer lies by way of reference to a judge under paragraph 11 of the Advocates' Remuneration Order, not by an application to strike out a Bill of Costs.
Court orders
#- 1.All grounds of appeal outside the confines of the ruling dated 8th July 2011 and the Notice of Appeal are dismissed
- 2.The appeal is dismissed with costs to the 3rd respondent
- 3.The ruling of the High Court dated 8th July 2011 is affirmed and upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1203 of 2006 (Ruling of 8th July 2011)
- Jurisdiction invoked
- Appellate jurisdiction under the Court's rules; jurisdiction confined by the Notice of Appeal and Rule 104 of the Court of Appeal Rules ("The jurisdiction of this Court is confined and defined by the Notice of Appeal filed in this matter and as denoted by Rule 104 of the rules of the Court.")
Relief refused
#Declaratory orders that the Deputy Registrar's order of 26th June 2007, Rawal J's order of 22nd October 2007 and the Court of Appeal order of 20th March 2009 are null and void
These matters fall outside the Ruling of 8th July 2011 which is the subject of the Notice of Appeal
Orders for rectification/expungement of the Register of Titles, surrender of the indenture for LR No. 36/11/1 Eastleigh, and vacant possession
The impugned ruling did not consider the validity of any conveyance instrument, possession or occupation of the Eastleigh property
Dismissal of the 3rd respondent's Bill of Costs dated 29th June 2007
The proceedings did not arise from a Reference under the Advocates' Remuneration Order and the court record showed the suit was withdrawn with costs
Costs
The appeal is dismissed with costs to the 3rd respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the above stated reasons, the upshot is that this appeal has no merit and is hereby dismissed with costs to the 3 rd respondent. The ruling of the High Court dated 8th July 2011 be and is hereby affirmed and upheld.
The jurisdiction of this Court is confined and defined by the Notice of Appeal filed in this matter and as denoted by Rule 104 of the rules of the Court.
We further hold that unless there is contestation and dispute on tampering or authenticity and veracity of the court record, there was no need for an affidavit to prove the contents of a court record.
Based on this fact, we decline to grant the order dismissing the Bill of Costs for the reason that the proceedings before the High Court and this Court do not arise from a Reference under the Advocates Remuneration Order.
This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.
Issues in the judgment
#The judgment inconsistently dates the impugned High Court ruling as 8th July 2011 in the record and paragraphs 1 and 26, but refers to it as 'the Ruling dated 8 th July 2007' in paragraphs 15, 16, 19 and 25.
The judgment quotes the trial judge's record as describing the notice of withdrawal as 'dated 15th June 2017' where the surrounding text and the record show the date was 15th June 2007.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Georege Gikubu Mbuthia v Housing Finance Company of Kenya Limited & 2 others [2018] KECA 86 (KLR)", Case Analysis (2018). Civil Appeal No. 173 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/86/eng@2018-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.