[2022] KEHC 16272 (KLR)

ABSABank Kenya PLC v Mochache (Civil Appeal E370 of 2021) [2022] KEHC 16272 (KLR) (Civ) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16272 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E370 of 2021

JN Mulwa, J

December 15, 2022

Between

ABSA Bank Kenya PLC

Applicant

and

Robert Mochache

Respondent

Ruling

1. Before the court is an application dated April 28, 2022 brought by Robert Mochache, the respondent in this appeal. It is brought under provisions of order 42 rule 35, and order 51 rule (1) of the Civil Procedure Rules. The applicant seeks orders that the appeal be dismissed for want of prosecution, upon which an order issues that the decretal sum deposited in a joint interest earning account at KCB No 128XXXXX, Branch Sarit Centre, with all interest accruing thereto be released to him.

2. He also seeks that the appellant be ordered to pay costs of the primary suit CMCC No 7756 of 2019 as well as costs of the appeal.

3. The application is based on the grounds stated at the face thereof and his supporting affidavit sworn on the 28th of April 2022.

4. The applicant’s case is that the memorandum of appeal was filed on the 20th of June 2021 against a judgment of the trial court delivered on the 28th of May 2021. It is averred that since then, no record of appeal has been filed, seven months from the date the court issued directions, given upon a consent duly adopted by the court on the 28th of July 2021, wherein the appellant agreed to file the record of appeal within which was done.At the same time, the decretal sum of Kshs 3,000,000/- was to be deposited in an interest earning account, which was done.The record of appeal was filed and directions taken on the 5th of October 2021, but that no other steps have been taken to progress the appeal for a period of seven months from the date thereof. I have seen the record of appeal in the court record; it is dated April 13, 2022. Due to the delay, the applicant seeks dismissal to avoid prejudice to the applicant who has been locked out of his decretal sum.

5. In opposition to the application, the respondent Absa Bank Kenya PLC filed a replying affidavit sworn on the 10th of June 2022 by Michelle Bosibori Advocate representing the respondent/appellant.

6. The reason for the delay is stated to be due to delay by the trial court to supply the proceedings in good time, and a certificate of delay is annexed thereto as an exhibit; and upon receipt on the 1st of April 2022, the record of appeal was duly filed soon thereafter on the April 13, 2022 before this application was filed.

7. Additionally, it is averred that the respondent’s court clerk inadvertently forgot to serve the record, and urges that the court ought not visit the mistake upon the respondent. I have considered that the record of appeal was filed within time, and the delay to take further steps to progress the appeal. In my view it seems that directions on the hearing of the appeal were taken before the record of appeal was filed.

8. It is trite that until the record is filed and served, no further action may be taken by the appellant to progress the appeal.

9. The consent on directions on progression of the appeal were issued on the 28th of July 2021, and upon receipt of the subordinate court proceedings, the record was filed. The appellant can therefore not be blamed for faults beyond its control. The certificate of delay is sufficient proof. As clearly deponed to by the appellant, the record having been filed on the April 13, 2022, and this application filed on or about the April 28, 2022, the delay in between in my view was not inordinate as to persuade the court to dismiss the appeal for want of prosecution.

10. Under order 42 rule 35 (1) of the Civil Procedure Rules, an appeal may be dismissed for want of prosecution if;35 (2) if within one year after 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.A liberal interpretation of rule 35(1) is that no dismissal can be ordered unless directions have been given.

11. However, this court holds the considered view that an appeal may be dismissed despite directions having not been given especially where the appellant upon filing the memorandum of appeal, and the record of appeal sits on their laurels, without regard to the interests of the respondent, and the prejudice the delay may cause to the respondent. This is the holding rendered in the case China Road & Bridge Corporaiton v John Kimenya Muteti [2019] eKLR the court further observed that no directions can be given where the appellant has not moved the court.

12. I do not agree to the contention that, by order 42 rule 35, it is the Deputy Registrar who ought to move the court. Far from that; an appeal belongs to the appellant and if all appellants were to wait for the Deputy Registrar to move the court for the progression thereof, nothing would ever be done; and appeal files would simply pile up in the court registries. It is the appellant in the first instance who has the burden of progressing the matter; the respondent comes second.

13. In the case Abraham Mukhola Asista v Silver Investment Company Limited [2020] eKLR, the court rendered that nothing bars a court form dismissing an appeal for want of prosecution even when no directions are given.

14. The respondent to succeed in having an appeal dismissed for want of prosecution, reasons for the delay must be sufficiently demonstrated among them, whether the delay is prolonged and inexcusable, and if so, whether justice would still be done despite the delay as held in the cases Peter Kipkurui Chemoiwov Richard Chepsergon [2021] eKLR andIvita v Kyumbu [1984] KLR 441.

15. In this appeal, the court has considered the reasons for the delay, and whether justice would be done by its dismissal.I am persuaded that the delay is not inordinate, and in any event, it has been sufficiently explained. Dismissal of a suit or appeal on procedural processes is but draconian. A party is entitled to an opportunity to ventilate their cases in court at all stages without undue procedural technicalities – article 159 (2) (d) of the Constitution. The respondent further claims that a certified copy of the decree appealed from is not filed.I have perused the record. I confirm that no decree was filed together with the record.To that extent, the appeal cannot proceed without that very vital document. Surprisingly, the appellant did not seek leave of court to file a supplementary record of appeal to annex the decree. I am not sure that it ever knew that the document was missing from the record.

16. Be that as it may, the appellant is granted 45 days to file and serve a supplementary record of appeal to annex the decree. This will however be upon terms as shall appear here below: -1. The court finds no sufficient reasons to allow dismissal of the appeal. The appellant is directed to file and serve a supplementary record of appeal within 45 days of this ruling, to include the decree from the trial court.2. The appeal shall thereafter be listed down for directions within 30 days of filing the supplementary record of appeal.3. The appellant shall pay throw away costs to the respondent assessed at 15,000/- within 45 days of this ruling.Orders accordingly.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 15TH DAY OF DECEMBER, 2022. J. N. MULWAJUDGE