[2017] KEHC 2006 (KLR)

REPUBLIC OF KENYA

THE HIGH COURT OF KENYA

AT NAKURU

HCC. NO 210 OF 2010

EMMA WANGECHI MACHARIA.......................APPLICANT

-VERSUS-

ZYSIUS NDERI NYASA……………................RESPONDENT

R U L I N G

1. The Notice of Motion dated 4th August 2016 was filed by the respondent in the appeal. She seeks that the appeal be dismissed for want of prosecution. The grounds set out are that a period of one year had elapsed since the appeal was last in court; that the appellants have lost conceivable interest in the appeal; and that the continued pendency of the appeal had been prejudicial and vexatious to the respondent/applicant.

2. The applicant deposes in her supporting affidavit sworn on 4th August 2016 that the appeal was filed on 6th December 2011 and a supplementary record of appeal was filed in 2013. That since then the appellant has not taken any steps to prosecute the appeal and that the period of inertia had caused her anxiety.

3. The 1st and 2nd respondents opposed the application. In the grounds of opposition filed on 21st April 2017, they state that the application is premature, incompetent and an abuse of the process of court. That the appeal had not been admitted under Section 79B of the Civil Procedure Act to enable the appellants comply with Order 42 Rule 12 of the said Act.

4. The application was argued orally before me on 19th July 2017. Ms. Kiberenge learned counsel for the applicants relied on the averments in the Supporting Affidavit. She added that the appeal had been lying unprosecuted for 7 years and that the delay showed that the appellants had lost interest in the appeal. She drew the court’s attention to the age of the respondent whom she stated was 73 years old and further argued that the appeal had no merit. Counsel further submitted that Order 42 R5 of the Civil Procedure Act does not mean that an appeal cannot be dismissed before directions are taken.

5. Ms. Murunga learned counsel for the respondents abandoned the grounds of opposition filed on 20th April 2017 and relied on the Replying Affidavit filed with leave of the court on 14th July 2016. The Replying Affidavit is sworn by one Pauline Waruhiu who is a Claims Manager of Directline Assurance Co. Ltd (the insurers of the accident motor vehicle). She deponed that the appellants filed a Record of Appeal on 6th December 2011 which appeal was subsequently admitted and directions given that parties proceed by way of written submissions. That the appellants filed submissions on 20th January 2016 and that the matter was now pending judgment. She further deponed that the delay was not unreasonable or inordinate and that such delay can always be compensated by damages and costs.

6. Ms. Murunga further submitted that the appellants were interested in the appeal as shown by their filing of submissions. She further submitted that the parties had been trying to settle the matter out of court. In reply, Ms. Kiberenge took issue with paragraph 6 of the Replying Affidavit stating that no directions had ever been taken in the matter. She also contested the submission that parties were negotiating.

7. I have considered the application and the respective affidavits and the oral submissions of counsel. The issue is whether the appeal should be dismissed for want of prosecution. The principles upon which dismissal for want of prosecution is to be considered have been enunciated in many decisions. In summary they are:-

i.whether there has been inordinate delay on the part of the plaintiff in prosecuting the case;

ii.whether the delay is intentional, contumelious and, therefore inexcusable;

iii.whether the delay gives rise to substantial risk to fair trial or causes serious prejudice to the defendant;

iv.whether the plaintiff has offered a reasonable explanation for the delay;

v.even if there has been delay, what does the interest of justice dictate.

See Ivita Vs Kyumbu (1984) KLR 441. See also Utalii Transport Company Ltd and 3 others Vs NIC Bank Ltd & Another (2014) eKLR.

8. In the present application, it is common ground that judgment in the lower court was delivered on 1st July 2010. The appellant filed the Memorandum of appeal on 30th July 2010. It is also on record that the appellants obtained stay of execution on 12th May 2011 on condition that they deposit half the decretal sum in court. They duly complied. The appellants then filed their Record of Appeal on 6th July 2011. Thereafter the appellant’s counsel wrote to the Deputy Registrar of the court on 15th July 2013, requesting that the matter be listed for directions.

9. From my perusal of the file, it is not clear whether the appeal has ever been admitted. What is clear however is that there are no proceedings or record showing that parties took directions to prosecute the appeal by way of written submissions as contended by the respondents at paragraph 6 of their replying affidavit. It is clear to the court that the action of filing submissions dated 18th August 2016 (which are curiously date stamped 20th January 2016) without the directions of the court was a ploy to defeat any inquiry into any possible indolence in prosecuting the appeal.

10. While it is the duty of the Deputy Registrar of the court to bring up appeals for admission by the Judge, it is also the duty of the litigants to be actively engaged to see to it that their matters progress. In this case, it is evident from the record that it is the respondent/applicant’s counsel who have been writing to the court seeking that the matter be listed. Conversely there is no demonstrated action on the part of the appellants to have the appeal admitted or listed for directions. What appears on record are feeble attempts in the form of one or two letters addressed to the Deputy Registrar over the 7 year period.

11. It is my finding that the 7 year delay since filing the Memorandum of appeal and the 6 year delay since filing the Record of Appeal is inordinate. It is my finding also that the respondent has been prejudiced by this delay as the same has denied her the fruits of the judgment she obtained way back in 2010 while the decretal sum remains deposited in court. I am persuaded that the appellants have not been keen on the appeal and that it would be fair and just to dismiss the same.

12. In the premises, I allow the application dated 4th August 2016 with costs to the applicant. The appeal is hereby dismissed for want of prosecution.

Ruling delivered, dated and signed in open courtthis 12th day of October, 2017

..............................

R. LAGAT KORIR

JUDGE

In the presence of:

C/A Emojong

N/A for applicants

Mr. Mburu for respondent