[2017] KEHC 971 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

MISCELLEANOUS APPLICATION NO. 25 OF 2017

ABDI AHMED ABDI………….....………………………...RESPONDENT

VERSUS

JELLE ABDI AHMED (Suing as personal representative of the estate of

ABDIRIZAK JELLE ABDI (Deceased)…….….....…...........APPLICANT

RULING

1. The Applicant has filed a notice of motion dated 19th May, 2017 seeking the release of the decretal sum remitted in court to the applicant for medical expenses and that the intended appeal that was to be admitted as was ordered on 7th March, 2017 be dismissed.

2. The motion is premised on the grounds set out on the body of the application and the supporting affidavit of the Applicant. The reasons advanced for this application are that following delivery of judgment against the Respondent in favour of the Applicant on 10th December, 2014 in Machakos CMCC No. 1576 of 2009, the Respondent filed an application for stay of execution and leave to appeal out of time. The application was heard and a ruling allowing the application delivered on 9th October, 2015. The court granted stay orders on condition that the respondent deposits the decretal sum in a joint interest earning account opened in the names of the parties’ advocates. Considering that the advocates were in disagreement, a consent was recorded to the effect that the decretal sum be deposited in court. The said amount was deposited in court on 10th December, 2015 however, the respondent despite being given leave to appeal out of time has never filed an appeal. That the 60 days requirement of appeal has since lapsed and as a result the applicant has suffered great loss as a result of the delay. That the applicant is aged 57 years and has health issues and need the said money to cater for medical expenses.

3. The motion was canvassed by way of written submissions. It was the applicant’s submission that it was until this motion was filed that the respondent served the applicant with a memorandum. That litigation must come to an end. It was contended that this matter has been in court since the year 2009. That the applicant is an old man now and sickly while the respondent is dragging his feet at the applicant’s expense. Citing Patrick Kiruja Kithinji v. Victoria Mugira Marete (2015) eKLR, Joseph Kangethe Kabogo & Benson Mburu Kangethe v. Michael Kinywa Ngari (2012) eKLR, Article 159 (2) (d) and Section 1A and 1B of the Civil Procedure Act it was submitted that there should be expeditious disposal of cases. That it is an abuse of court process that even after being given ample time to file his appeal, the respondent has delayed in doing so.

4. In response thereto, the respondent contended that the order for deposit of the decretal sum was a consent order that has not been set aside or reviewed. That following the court record for 7th March, 2017 that the matter be mentioned on 9th May, 2017 to confirm whether appeal has been admitted to enable appellant prepare record of appeal, it is clear that the appeal is yet to be admitted. That the preparation of the record of appeal has been hampered by failure by trial court to supply the appellant with certified copies of proceedings, judgment and decree.

5. I have carefully considered the motion and dispositions herein. It is clear that the partied herein entered into a consent to have the decretal sum deposited in court. The said consent was merely to change the terms of the deposit of the decretal sum and not the time within which the respondent was to file the appeal. In her ruling of 9th October, 2015, Lady Justice Nyamweya ordered that the respondent is granted leave to file an appeal within 14 days from the date of the ruling. That order has not been complied with to date and although the respondent alleged that the delay is due to failure to obtain proceedings, he has not been prudent enough to furnish evidence to establish that he made requests for the proceedings. The Respondent all along ought to have prepared the record of appeal. There is no evidence such as a draft record of appeal or letters addressed to the Deputy Registrar regarding supply of proceedings etc. indeed delay defeats equity.

On the 9/5/2017 Counsel for the parties agreed by consent to the effect that if the Respondent/Appellant failed to file and serve record of appeal then the decretal sums shall be released to the Respondent/Applicant herein. It was the failure by the Appellant/Respondent to file the record of Appeal and which has precipitated the filing of the present application. Dismissal of suits or appeals is noted to be dragonian in nature and as such parties ought to be given even a last chance to salvage their cases. Dismissal of appeal as sought herein require that the appeal has already been admitted and directions taken pursuant to Order 42 Rule 13 and 35 of the Civil Procedure Rules. Hence the request for dismissal vide prayer 2 of the Application is premature at this stage and is hereby declined. This then leaves prayer 1 for consideration. The Applicant is entitled to the decretal sums as a result of the Appellant’s indolence to fast track the appeal. Consequently the request for release of the decretal sums is merited.

6. In the result and in view of the aforegoing observations, the Applicant’s Application in terms only of prayer 1 thereof is allowed as prayed. It is now up to the Appellant to pursue the appeal if need be. Costs shall be in the cause.

Dated, Signed and Delivered at Machakos this 5thday of December,2017.

D.K. KEMEI

JUDGE

In the presence of:

Muema for Mbindyo for Appellant

Mrs Awour for Respondent

Kituva – Court assistant