[2020] KEHC 965 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CIVIL APPEAL NO 108 OF 2017

ABRAHAM MUKHOLA ASITSA ...........................................................APPELLANT

VERSUS

SILVER STYLE INVESTMENT COMPANY LTD…...........................RESPONDENT

RULING

1. The application for determination is dated 8th September 2019 In It the respondent seeks to have the appeal dismissed for want of prosecution. According to it, there has been an inordinate delay of 2 years 11 months, adding that the appellant has never served a record of appeal.

2. In response, the appellant has argued that the application is bad in law, and was brought under the wrong provisions of law. He invoked the right to be heard under Article 50 of the Constitution, and stated that the record of appeal was ready and served and that the matter was awaiting directions.

3. The application was urged orally.

4. With regard to quoting the wrong provisions of the law, the court in James Wanyoike & another vs. Rosebella Jebet Bor [2017] eKLR,faced with similar circumstances said:

“6. The respondent has challenged the provisions under which the application has been brought. Order 17 Rule 2 (3) of the CPR states that: Any party to the suit may apply for its dismissal as provided by sub-rule 1. Sub rule 1 states:-

“In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.”

The respondent contends that the appeal can only be dismissed for want of prosecution under Order 42 Rule 35 (2) of the Civil Procedure Rules as it has not been admitted in accordance with the Section 79B of the Civil Procedure Act. That orders for dismissal sought by the respondent should not be entertained.

7. Both Order 17 Rule 2 (3) and Order 42 Rule 35 (2) in my view give effect to the overriding objective which is the just, expeditious, proportionate and affordable resolution of civil disputes. They provide avenues though which idle litigation is weeded out of the court system. Their import is to ensure that parties either keep their litigation alive or get them removed. While Order 17 places the responsibility of flagging out such cases on the parties, Order 42 Rule 35 (2) places the responsibility on the court through its duly appointed Registrars. While I agree with the respondent that the application has been brought under the wrong provision of the law, I hesitate to strike it out. I will instead consider it under the ambit of overriding principle in litigation under Section 1A of the Civil Procedure Act.”

5. In Albert Mburu Karinga vs. Peter Mambo Karinga & another [2014] eKLR, the court stated:

“I have considered the submissions made. On the application being defective that is cured by the provisions of Article 159 (2) (d) of the Constitution which provides that justice shall be administered without undue regard to technicalities.”

6. The Court of Appeal in Kenya Trypanosomiasis Research Institute vs. Anthony Kabimba Gusinjilu (Suing for and on behalf of 112 Plaintiffs) [2019] eKLR, said :

“Lastly, having established that the respondent’s application dated 17th December 2010 had been brought under the wrong law, we agree with the court’s finding that the irregularity was not serious enough to prevent the court from exercising its discretion, hearing and determining the said application on its merit. Taking note that the rules of procedure should be used as handmaids of justice but not to defeat it, the court weighed the issues before it and found that there would be no injustice visited on the appellant in the spirit of Article 159 (2)(d) of the Constitution and Sections 1A and B of the Civil Procedure Act.”

7. Clearly, the failure to cite the relevant provisions of the law does not render an application defective, and that the court ought to consider the application in light with Article 159 of the Constitution.

8. Order 42 Rule 35 (1) of the Civil Procedure Rules says, with respect to dismissal of appeals:-

“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.”

9. Order 42 Rule 35 (2) of the Civil Procedure Rules states:-

“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.”

10. In Pinpoint Solutions Limited & another vs. Lucy Waithegeni Wanderi (as the Legal Administrator of the Estate of James Nyanga Muchangi)[2020] eKLR , the court elaborated on the procedure relating to dismissal of appeals for want of prosecution, saying

“20. 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 fails to proceed as per Order 42 Rule 11 and Order 42 Rule 13 of the Civil Procedure Rules, 2010.

21. This court took the view that an appeal cannot be dismissed before directions had been given. As there was no indication that directions had been given herein, the Appeal herein could not be dismissed under Order 42 Rule 35 (1) of the Civil Procedure Rules. In any event, there was also no evidence that the Registrar had issued a notice under Order 42 Rule 12 of Civil Procedure Rules. There was also no indication that the lower court file and proceedings had been forwarded to the High Court for the Registrar to proceed as aforesaid.”

11. From the authorities above, it is would appear that an appeal cannot be dismissed for want of prosecution before directions have been taken.

12. However, I am not persuaded that there is any justification, for the party to file appeal, and thereafter go to sleep. An appeal is not filed for the sake it. It should not be left parked at the appeals registry for times on end, without any action being taken. I believe a party who files appeal and goes to sleep and takes no action on it for a long time, cannot hide order above the provisions and argue that since directions had not been taken then the appeal cannot be dismissed. An appeal should not be left to hang over the head of a respondent endlessly, where the appellant is unwilling to take action on it. Justice demands that the same be resolved one way or the other. I believe dismissal of such stale appeals is one of the resolutions. There is no point of populating appeals registries with appeals that are not being prosecuted, yet the courts are being told they cannot dismiss them before directions are taken. This creates unnecessary backlog. If parties are not moving their cases, the courts should dismiss them. There is no reason for them to clog the system. It is an untenable position. I believe there is inherent power to dismiss such appeals.

13. In this case, no action was taken by the appellant, after his appeal was filed, for over two years, indeed for nearly three years. He did not explain why that was so. I am persuaded that this is a proper case for dismissal of the appeal, and I hereby dismiss the appeal with costs. The order herein shall apply equally to Kakamega HCCA No. 105 of 2017.

DELIVERED DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 4TH DAY OF DECEMBER 2020

W MUSYOKA

JUDGE