[2023] KEHC 27534 (KLR)

Abdulla t/a Gulshan Restaurant v Lukmanji & 4 others (Civil Appeal 82 of 2016) [2023] KEHC 27534 (KLR) (27 October 2023) (Ruling)

Neutral citation: [2023] KEHC 27534 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 82 of 2016

F Wangari, J

October 27, 2023

Between

Ibrahim Sheikh Abdulla t/a Gulshan Restaurant

Appellant

and

Rukiya Lukmanji

1st Respondent

Mustafa Ebrahimjee

2nd Respondent

Taibali Ebrahimjee

3rd Respondent

Gulamabas Ebrahimjee

4th Respondent

Jithiada Agencies Limited

5th Respondent

Ruling

1. The Respondents through the Notice of Motion dated 1/4/2021pyayed to have the Appellants’ appeal dated 28/6/2026 and the application dated 1/7/2026 be dismissed for want of prosecution. They also prayed for costs. The application was based on the ground that there has been no action taken by the Appellants for over 5 years, hence the Respondents should be relieved from the burden of this litigation.

2. I have perused through the court records and have not found the application dated 1/7/2016 nor any reference made about the said application in the court proceedings. There are also no proceedings for 19/7/2016 when the said application is said to have last come up for hearing. I have also not found ant Replying affidavit to the application dated 1/7/2016.

3. I have perused through the written submissions filed by both parties. The Appellants in their submissions made reference to the Notice of Motion dated 25/3/2021. I have also perused through the court records and have not found the application nor any reference of the same in the court proceedings. However, the contents of the submissions are in respect to the application dated 1/4/2021.

4. The Respondent/ Applicant submitted that the Appellant has not given credible and sufficient explanation as to why there is a delay in prosecuting the appeal. It was further submitted that the Appellants failed to prosecute the appeal because of their position as tenants and they cannot challenge the Title of the landlord.

5. The Appellants/ Respondent submitted that the appeal can only be dismissed for want of prosecution in accordance to Order 42, Rule 35 (1) of the Civil Procedure Rules. It was further submitted that the matter cannot be dismissed for want of prosecution as no directions had been given in the matter.

Analysis and determination 6. I have considered the application, and filed submissions together with the authorities relied upon by the parties, as well as the law and in my respectful view, there is only one issue for determination which is whether the appellant has made out a case for not dismissing the appeal for want of prosecution. Corollary to this finding is the issue of costs.

7. Order 42 Rule 35 (1) of the Civil Procedure Rules stipulates as follows:“Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution”.Order 42 Rule 35 (2) of the Civil Procedure Rules stipulates as follows:“If, within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal”

8. Order 42 Rule 13 (1) of Civil Procedure Rules provides as follows: -“1)On notice to the parties delivered not less than twenty-one days after the date of service of the memorandum of appeal the appellant shall cause the appeal to be listed for the giving of directions by a judge in chambers.

9. From the court records, there were no directions that had been given in this appeal. Since the filing of this Appeal on 28/6/2016, no action has been taken by the Appellant. There have been applications made in the mater and rulings delivered.

10. The essence of dismissal of suits for want of prosecution is the need for expeditious dispensation of suits. In Mobile Kitale Service Station vs. Mobil Oil Kenya Limited & another [2004] eKLR, it was held as follows;“I must say that the Courts are under a lot of pressure from backlogs and increased litigation, therefore it is in the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice caused by delay would be a thing of the past. Justice would be better served if we dispose matters expeditiously. Therefore, I have no doubt the delay in the expeditious prosecution of this suit is due to the laxity, indifference and/ or negligence of the plaintiff. That negligence, indifference and/or laxity should not and cannot be placed at the doorsteps of the defendant. The consequences must be placed on their shoulders.”

11. This court has a duty to determine the application on merits. In Mwangi S. Kimenyi -vs- Attorney General and Another, Civil Suit Misc. No. 720 of 2009, the court on considering whether or not the suit should be dismissed for want of prosecution stated as follows: -When the delay is prolonged and inexcusable, such that it would cause grave injustice to the one side or the other or to both, the court may in its discretion dismiss the action straight away. However, it should be understood that prolonged delay alone should not prevent the court from doing justice to all the parties- the plaintiff, the defendant and any other third or interested party in the suit; lest justice should be placed too far away from the parties.

12. The Appellants rely on the fact that the matter had not been fixed for directions under Order 42 Rule 13 of the Civil Procedure Rules, hence they could not fix the matter for hearing. In the case of Grace Njeri Theuri v John Mburu Wainaina [2022] eKLR, it was held as follows;“It is evident from the provisions of Section 79B of Civil Procedure Act that a judge has to peruse the appeal before he can summarily reject the same. These are the directions contemplated in Order 42 Rule 11 of the Civil Procedure Rules that states as follows:“Upon filing of the appeal the appellant shall within thirty days, cause the matter to be listed before a judge for directions under section 79B of the Act”.If the appeal is not summarily dismissed, then the registrar shall notify the appellant who shall then serve the Memorandum of Appeal upon all the respondents within seven (7) days of receipt of the notice from the Registrar in accordance with Order 42 Rule 12 of the Civil Procedure Rules. After service of the Memorandum of Appeal, on notice to the parties delivered not less than twenty-one (21) days, the appellant shall again cause the appeal to be listed before the judge for directions as seen in Order 42 Rule 13 of the Civil Procedure Rules.Notably, the procedure for rejection and/or admission of appeal and giving of directions is very well set out in the Civil Procedure Rules. However, this procedure does not seem to be strictly followed and differs from one court to another………The appellant does not seem to have any role in fixing the appeal for directions as contemplated under Order 42 Rule 11 of Civil Procedure Rules and Order 42 Rule 13 (1) of the Civil Procedure Rules. It is important to point out that under Order 42 Rule 13 (4) of the Civil Procedure Rules, the judge shall not allow a matter to proceed for hearing unless the record of Appeal is duly filed.…………The provisions of the law relating to dismissal cannot be read in isolation. The bottom line is that directions must have been given before an appeal can be dismissed for want of prosecution. Indeed, there does not appear to be any penalty where an appellant fail to proceed as per Order 42 Rule 11 and Order 42 Rule 13 of the Civil Procedure Rules, 2010”

13. From the above provisions, this appeal cannot be dismissed on technicality grounds as directions had not been taken. In order to accord the parties herein the right to a fair trial as per Article 50 of the Constitution, 2010, directions shall be given in this ruling.

14. On the issue of costs, Section 27 of the Civil Procedure Act decrees that the same follows the event. However, the court retains its discretion to either award or not to award costs. In this case, costs to follow the outcome of the appeal.

15. Following the foregone discourse, the upshot is that the following orders do hereby issue;a.The Notice of Motion dated 1/4/2021 lacks merit and is hereby dismissed.b.That in the interest of time, the Record of Appeal be filed and served within the next 30 days after the delivery of this ruling.c.In default of (b) above, the appeal stands dismissed.d.Each party to bear its own costs.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 27TH DAY OF OCTOBER, 2023. F. WANGARIJUDGEIn the presence of;Khamisi Advocate h/b for Abubakar Advocate for the AppellantOmwenga Advocate for the RespondentBarile, Court Assistant