[2022] KEHC 12717 (KLR)

Francis Kibera & another v Dependants (Civil Case E134 of 2021) [2022] KEHC 12717 (KLR) (15 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12717 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Case E134 of 2021

MM Kasango, J

June 15, 2022

Between

Francis Kibera

1st Appellant

Unviersity Of Nairobi

2nd Appellant

and

Nathan Mudoga (suing as Administrator ad litem of the estate of Innocent Kamadi Anyange and for his dependants)

Respondent

(Being an appeal from the judgment in Senior Principal Magistrate’s Court Kikuyu (D.N. Musyoka, SPM) in Civil Case No. 159 of 2017 dated 17th December, 2019)

Ruling

1. Reading through the notice of motion application dated September 8, 2021, filed herein by the respondent to this appeal, one gets a distinctive feeling that either the respondent or his counsel or both are too anxious over this case which is clouding their judgment on how to progress in this matter. I make this statement because the respondent filed an application before the trial court, Kikuyu Magistrate’s Court, dated July 10, 2021 whose orders have the same effect as the application before me for consideration. In my view, that is tantamount to being an abuse of the process of the court. This court will not allow its process to be abused.

2. For clarity, I shall state that what the respondent sought through the application dated July 10, 2021 filed before the Kikuyu Magistrates court, is for that court to set aside the order it issued permitting the appellant to file an appeal before this court out of time. As I understand from the content of the affidavit of Edwin Omulama Onditi, the advocate of the respondent, the ruling of Kikuyu Magistrates court to the aforestated application is pending.

3. While that ruling is pending, the respondent filed before this court notice of motion application dated September 8, 2021. By that application the respondent seeks the memorandum of appeal filed herein pursuant to the leave granted by Kikuyu Magistrates’ Court be dismissed for want of prosecution; that the memorandum of appeal be declared incompetent; the memorandum of appeal be rejected summarily; and the money deposited in joint interest earning account be released to the respondent’s advocate.

4. The application, in view of the finding that having the two applications pending before two different courts is an abuse of court will not be considered. It will be struck out with costs. Before striking out that application I will but state that order 42 rule 35(1) (2) envisages dismissal of an appeal for want of prosecution; in the first instance, where the three months after directions are given, the appellant fails to set down for hearing of the appeal; in the second instance, the appeal is dismissed for want of prosecution when the appellant fails to set down the appeal for hearing within one year of service of memorandum of appeal.

5. The other matter I wish to bring to the attention of the parties, in this appeal is that as provided under section 75B, this court has perused the appeal and admitted it for hearing on September 16, 2021.

6. The last comment I reserve to the trial court. I am concerned and it has come to my notice more than once, as in this case that the trial court irregularly entertained an application under section 79G of the Civil Procedure Act. That section does not empower the Magistrate’s Court to enlarge the time permitted to file an appeal before the High Court under that section that is, 30 days period from the date of the Magistrates Court’s judgment or order. Why else would section 79G in its proviso use the words:-“Provided that an appeal may be admitted out of time…”

7. It is unlikely the magistrate’s court was empowered by the legislature to admit or not to admit an appeal intended to be filed against its own orders.

8. The determination the validity or otherwise of the Kikuyu Magistrates’ Court order extending time to appellant to file an appeal out of time is not before me and my expression herein is orbiter dicta.

9. In the end, the application dated September 8, 2021 is hereby struck out for the reasons set out above. The costs thereof are granted to the appellant.

RULING DATED AND DELIVERED AT KIAMBU THIS 15 TH DAY OF JUNE, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceFor the Appellants: Mr. Donald KipkorirFor the Respondent : Mr. OmulamaCOURTRuling delivered virtually.MARY KASANGOJUDGE