[2011] KEHC 1028 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT

AT BUNGOMA

CIVIL APPEAL NO.3 OF 2010

(Appeal arising from original BGM CM CC NO.172 of 2004)

AHMED SHUKRI ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

~VRS~

AUGUSTINE MULAA :::::::::::::::::::::::::::::::::::::::::::: 1ST RESPONDENT

JOSHUA OHUYA OMUGANDA:::::: ::::::::::::::::::::: 2ND RESPONDENT

RULING

The Respondents/Applicants in their application dated 15/02/2011 seek for orders of dismissal of appeal for want of prosecution. The grounds on the face of the application are that the court gave the parties directions on the appeal on 15/04/2010. Since that time, the Appellant has never taken any step to fix the appeal for hearing. The Appellant was granted orders for stay against the ruling of the magistrate for refusal to extend time within which to deposit decretal amount of Ksh.328,442/=. The Applicant is aggrieved by the delay of the appeal which is causing him suffer hardships for loss of income from the suit premises and accruing municipal council rates.

The parties agreed to have the application disposed of by way of affidavits and submissions. The Respondent/Appellant herein opposed the application on grounds that the same is not brought under the correct provisions of the law and that is incompetent. The Respondent further argues that Order 42 Rule 12 requires the Deputy Registrar to notify an Appellant that his appeal has not been summarily dismissed so that he/she can move to serve the Respondents with the memorandum of appeal. The Deputy Registrar in this case failed to comply with the rule. It is further argued that, the exhibits annexed to the application have not been marked and numbered as required by the law and ought to be struck out.

On perusal of the application, I note that as pointed out by the Respondent in his submissions, the Applicant has cited Order 42 Rule 35 as the law under which his application is brought. It is true that the Applicant has not indicated the relevant statute or subsidiary legislation. However, the procedure in civil cases is guided by one statute known as the Civil Procedure Act, Cap 21 and the Civil Procedure Rules. The spirit of the Civil Procedure Act is for the court to focus on the overriding objective and not give regard to technicalities. I find that the omission is not fatal to the application. The citing of section 3 and 3A of the Act which relates to the inherent jurisdiction of the court where there are specific provisions is also not fatal to this application. The failure to name and mark the annextures is contrary to the provisions of section 9 of the Oaths and Statutory Declarations Act. The non-compliance may call for striking out of the annexture depending on how the court looks at the matter. However, the annextures are not relevant to the application since they relate to the merit or demerits of the application. In an application of this nature, a supporting affidavit is sufficient. For these reasons, I strike out the annextures from the record.

Order 42 Rule 35 (1) provides as follows:

“Unless within three months after the giving 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.”

This appeal was filed on 29/01/2010 and through an application under certificate of urgency, the Respondent applied successfully for stay of the magistrate’s ruling. The appeal was admitted on 15/04/2010 and directions given accordingly. Since that date, it is now one year and three months. The Appellant has never caused the appeal to be fixed for hearing. It now appears that the urgency with which the appeal was filed and stay order obtained has ceased to exist. The orders for stay are for the benefit of the Respondent/Appellant as opposed to the Applicant/Respondent. The provisions of Order 42 Rule 35 (1) are very clear that if within three months after directions, the Appellant fails to move the court to hear his appeal, the Respondent is at liberty to set down the appeal for hearing or to apply for dismissal of the appeal for want of prosecution. The Respondent may opt for any of the two options under the rule. The Applicant herein did not explain the cause for non-compliance with the provisions of the law. Instead he dwelt on other side issues leaving the core of the matter untouched. In effect this means that there is no serious opposition to the application.

As for the non-compliance of Order 42 Rule 12 by the Registrar, I find this a mere excuse in that the Appellant is expected to use due diligence to follow up his appeal step by step. I refuse to buy the argument that the Appellant may not have been aware that the appeal had been admitted and directions given.

It is my finding that the Applicant has satisfied the court as to the requirements of Order 42 Rule 35 (1). I accordingly allow the application as prayed. The appeal stands dismissed with costs to the Applicant.

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F. N.MUCHEMI

JUDGE

Ruling dated and delivered on the 8th day of Nov 2011 in the presence of Mrs Areba for Areba.

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JUDGE