[2022] KEHC 1615 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 708 OF 2016

FRANCIS MBUGUA MBOGO(Suing as theadministrator to the estate of

JOHNGACHAU MBUGUA-Deceased)..............................APPELLANT/APPLICANT

-VERSUS-

KENYA SCHOOL OF MONETARY STUDIES.......................................RESPONDENT

RULING

1. The appellant/applicant in this instance has brought the Notice of Motion dated 28th September, 2020 supported by the grounds laid out on its face and the facts stated in the affidavit of advocate Franklin Omino. The applicant sought for an order for reinstatement of the appeal.

2. The respondent resisted the Motion by filing the replying affidavit sworn by advocate Martha Gathoni Mwema on 26th October, 2021.

3. At the interparties hearing of the instant Motion, this court gave directions for the parties to file and exchange written submissions.

4. I have considered the grounds set out on the face of the Motiontogether with the facts deponed in the affidavits supporting and opposing the Motion, and the rival written submissions plus the authorities cited in reliance thereto.

5. It is clear that the sole order sought in the instant Motion is for the reinstatement of the appeal.

6. On the part of the applicant, Franklin Omino states in his affidavit that the delay in prosecuting the appeal was occasioned by the challenges experienced in procuring the typed proceedings and impugned judgment from the lower court to enable them compile and file a record of appeal.

7. The advocates further states that on the date on which the parties were summoned to attend court for hearing of the notice to show cause on 14th February, 2020 he was engaged in another case namely ELC No. 96 of 2018 and that by the time he became available, the present appeal had already been dismissed.

8. At the submission stage, the applicant contends that the notice to show cause was issued before confirmation had been made on the availability of the lower court proceedings and hence the dismissal order which followed was premature.

9. Consequently, and for the above reasons, the applicant urges this court to exercise its discretion in his favor, adding that it would serve the interest of justice given the nature of the appeal and that the respondent does not stand to be prejudiced if the appeal is reinstated.

10. In retort, Martha Gathoni Mwema states on behalf of the respondent that there has been an inordinate and inexcusable delay in the prosecution of the appeal and that to allow the order for reinstatement sought would be prejudicial to the respondent.

11. The respondent also submits inter alia, that since filing the memorandum of appeal on 23rd November, 2016 the applicant failed to file his record of appeal and that the applicant cannot be heard to blame his advocate for the delay in prosecuting the appeal.

12. In that respect, the respondent cites among others, the case of Equatorial Commercial Bank Limited v Pickwel and Deal Limited & 2 others [2019] eKLR in which the court reasoned that a litigant has a duty to follow up on the progress of his or her case with the advocate since the case belongs to the litigant and not the advocate at the end of the day.

13. The respondent further submits that if the appeal is reinstated, it stands to be prejudiced in the sense that it has since ceased its operations; that it has lost touch with its witnesses; and that it has already put the matter to rest following the dismissal of the applicant’s suit by the lower court back in 2016.

14. Upon my perusal of the record, I observed that being aggrieved by the judgment dismissing his suit on 19th October, 2016 the applicant filed the memorandum of appeal on 23rd November, 2016 to challenge the same.

15. The applicant has annexed to the instant Motion the correspondence dated 24th October, 2016 and received on 10th November, 2016 addressed to the Executive Officer-Chief Magistrate’s Court at Milimani Commercial Courts, requesting for copies of the relevant documents to enable the preparation of his record of appeal. The record shows that the Deputy Registrar-Civil Appeals Division sent similar correspondences on various dates.

16. From my perusal of the record, it is apparent that the lower court file and relevant documents were thereafter forwarded to the Deputy Registrar vide the letter received on 13th April, 2018. It remains unclear whether the parties herein were notified on the availability of the lower court file.

17. Suffice it to say that subsequently, the Deputy Registrar issued a notice to show cause on 18th December, 2019 requiring the applicant’s advocate to attend court on 14th February, 2020 to show cause as to why the appeal should not be dismissed for want of prosecution.

18. The record shows that none of the parties were in attendance on the abovementioned date and hence the dismissal order was made.

19. From the above circumstances, it is apparent on the one hand that the delay in the prosecution of the appeal was to some degree the result of inadvertence on the part of the applicant’s advocate in not taking active steps to prosecute the appeal and in failing to attend court for hearing of the notice to show cause; and on the applicant who did not bring any credible evidence to demonstrate any active steps taken in following up on the progress of the appeal with his advocate.

20. On the other hand, the record shows that the delay was also occasioned by the time taken in providing the lower court file to the High Court. As earlier noted, there is nothing to indicate that the applicant’s advocate was notified of the availability of the file and certified documents to enable the compilation and filing of the record of appeal.

21. It is apparent that the lower court file together with the requisite documents have since been returned to the Chief Magistrate’s

Court.

22. In the circumstances and notwithstanding the delay in prosecuting the appeal, upon considering the fact that the claim; being in the nature of a fatal accident; was dismissed by the trial court, I am convinced that it would be in the interest of substantive justice to grant the applicant an opportunity to pursue his appeal by setting aside the dismissal order currently in place.

23. Further to the foregoing, I am not convinced that the respondent has demonstrated by way of credible evidence the manner in which it has been prejudiced and will continue to be prejudiced if the appeal is reinstated.

24. Consequently, the Motion dated 28th September, 2020 is found to be meritorious and it is allowed therefore giving rise to a grant of the following orders:

i. The dismissal order made by the court on 14th February, 2020 be and is hereby set aside. Consequently, the appeal be and is hereby reinstated.

ii. Each party to bear their own costs..

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022.

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

J. K. SERGON

JUDGE

In the presence of:

...................................... for the Appellant/Applicant

.....................................................for the Respondent