BI v SKM (Civil Appeal E084 of 2025) [2026] KEHC 2942 (KLR) (Family) (6 March 2026) (Judgment) Neutral citation: [2026] KEHC 2942 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS) FAMILY CIVIL APPEAL E084 OF 2025 PM NYAUNDI, J MARCH 6, 2026 BETWEEN BI ................................................................................................................ APPELLANT AND SKM ........................................................................................................ RESPONDENT (Being an appeal from the Ruling and Orders of the Chief Magistrate’s Court at Nairobi Children’s Court the Learned Hon. Jackie Kibosia (P.M) delivered on 2nd May 2025 in Children’s Case No.MCCHCC/E1759/2024) JUDGMENT Introduction 1. Vide Memorandum of Appeal dated 5th May 2025 the Appellant herein seeks the following orders1. That the appeal be allowed and the ruling and an order made on 2n May 2025 be set aside 2. That the respondent be compelled to refund the appellant the sum of Kshs 289,800 3. The respondent be condemned to pay costs of this appeal. 2. The applicant is aggrieved that in the impugned ruling, the Court allowed the Notice to Show Cause, notwithstanding that he had demonstrated that he had provided for a medical cover, and the respondent unilaterally opted to pay cash for the occupational therapist. 3. The application was canvassed via written submissions. The appellant's submissions are dated 5th February 2026, and he reiterates that, having taken out medical cover, the respondent was wrong to seek the same treatment on a cash basis; he is therefore entitled to a refund. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2942/eng@2026-03-06 1
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4. While considering the record of appeal, I found that the same is incomplete as it does not include proceedings after 23rd January 2025, and especially the proceedings related to the prosecution of the Notice to Show Cause. 5. In the case of Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 others [2015] eKLR the Supreme Court, considering the incompleteness of a record of appeal, stated: (41) Without a record of appeal a Court cannot determine the appeal cause before it. Thus, if the requisite bundle of documents is omitted, the appeal is incompetent and defective, for failing the requirements of the law. A Court cannot exercise its adjudicatory powers conferred by law, or the Constitution, where an appeal is incompetent. An incompetent appeal divests a Court of the jurisdiction to consider factual or legal controversies embodied in the relevant issues. 6. Accordingly, the appeal is struck out for being incomplete and therefore incompetent and defective. 7. On account of the relationship between the parties, there shall be no order as to costs. It is so ordered DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 6TH MARCH 2026. P.M. NYAUNDI JUDGE In the presence of: Ng’alamoi Court Assistant Ms. Nyagah holding breif for Kamau Muturi for Respondent Jaoko for Appellant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2942/eng@2026-03-06 2
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