[2022] KEHC 9803 (KLR)

Gacheca & 2 others v Karite (suing as Administriatrix of the estate of Rosemary Muthoni (deceased) (Civil Appeal 143 of 2019) [2022] KEHC 9803 (KLR) (Civ) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 9803 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 143 of 2019

JN Mulwa, J

June 16, 2022

Between

David Gacheca

1st Appellant

Simon Mmburi Kuria

2nd Appellant

Virginia Mwangi

3rd Appellant

and

David Mwangi Karite (suing as Administriatrix of the estate of Rosemary Muthoni (deceased)

Respondent

Ruling

1. The Appellant filed this appeal by a Memorandum of Appeal dated 15/3/2019 and filed on even date. A consent order of both parties were recorded in court in Misc. Civil Application No. 170 of 2017 allowing for stay of execution of the trial courts decree on the 20/2/2019 and issued on the 15/3/2019.

2. By a Notice of Motion application dated 10/2/2021, the Respondent sought orders for the dismissal of the Appeal with costs citing Section 3A, 1A and 95 of the Civil Procedure Act, and Order 42 Rule 6, Order 50 Rule 6 and 51 Rule 1 and 3 of the Civil Procedure Rules, 2010.

3. The grounds for the application are listed as inordinate delay in not acting on the appeal, and supported by a Supporting Affidavit sworn on the 10/2/2021 by the Respondent, David Mwangi Karite.

4. In opposing the application, a Replying Affidavit was sworn on the 20/9/2021 by one Kelvin Nguru, describing himself as the Claims Manager at Directline Assurance Company Limited, the Insurers of the Motor vehicle involved in the accident swore. Parties filed written submissions to urge their respective positions, which have been considered, as well as their respective affidavits.

5. The Applicant’s submissions are dated 11/11/2021. It is submitted that judgment was delivered on the 1/2/2017 which was 5 years ago at the date of filing the application yet the Appellant had taken no step to progress the appeal.

6. Citing Article 159 2(d) of the Constitution, it is submitted that justice shall not be delayed; and by the Appellants’ responses, are using procedural technicalities to continue with the delay, stating that it is only the Deputy Registrar of the court who ought to list an appeal for dismissal. Further citing Order 42 Rule 11 Civil Procedure Rules, it is urged that the Appellant is obligated to list the appeal for directions before the Judge for directions within 30 days of filing the appeal, under Section 79B of the Civil Procedure Act. For the reasons stated, the Applicant submits that the Appellant has come to court with unclean hands, and the prolonged delay has caused the Applicant continued torment after losing his daughter in the tragic accident.

7. For the Respondents, it is averred in their Replying Affidavit they deposited the undisputed amount of Kshs. 840,000/= and Advocate’s costs, being Kshs. 189,925/= as security for due performance of the decree pending hearing and determination of the appeal and thereafter by letter requested for proceedings from the trial court. The letter is dated 16/5/2019 and another dated 10/5/2021. In that respect, its submission that the delay and failure to file the record of appeal and prosecute the appeal was not occasioned by the Appellants but by the Lower Court’s failure to furnish the Appellants with the proceedings and certified copies of the judgment and decree. Further, it is submitted that the delay is not inordinate and has not prejudiced the Respondent in any way.

8. The Respondent further submits that as directions have not been given, the application is pre-mature and the court ought not to entertain it; citing Section 79B of the Civil Procedure Act, and Order 42 Rule 35 (2) of the Rules.

9. The court has considered provisions of Section 79B of the Civil Procedure Act. I do not agree with the Respondent that without the appeal being admitted, no step can be undertaken by the Appellant because, Order 42 Rule 11 of the Rules provides that:“upon filing of an appeal, the Appellant shall within thirty days cause the matter to be listed before a judge for directions under Section 79B of the Act.”

10. It is clear that it is the Appellant who ought to move or cause the matter to be listed before a Judge for any action. It cannot be that the Deputy Registrar is the one to peruse through the appeals register and flag out appeals 30 days after filing, in this case, the Memorandum of Appeal, to list them before the Judge for directions.An appeal or case belongs to the Appellant or Plaintiff. It is their duty to see that all procedures are undertaken to progress the appeal and not to wait for the Deputy Registrar to move the court.

11. I have noted that for five (5) years, the Appellants only requested for typed proceedings only twice, by letters dated 16/5/2019 and 10/5/2021. Clearly, there has been no follow up on the letters. It has not been stated that they also paid for the typing of the proceedings and certification of the judgment and decree. Filing of the application hereto awakened the Appellant from their sleep to write the second letter. This is least expected from Advocates who ought to know that it is their duty to follow up with the Deputy Registrar or Executive Officer for proceedings, on behalf of their clients.

12. Depositing of the decretal sum into court cannot substitute the fact that the Respondent has been locked out of enjoyment of his judgment fruits. Order 42 Rule 35(2) of the Civil Procedure Rule provides that:“if within one year after the 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.”

13. In my considered view, it is once again clear that if within one year after service of the Memorandum of Appeal, and no action has been taken by the Appellant, the appeal may be dismissed. It is not only the Registrar who should initiate the process of dismissal, but also the Respondent (Appellant).

14. In the case,China Road & Bridge Corporation vs John Kimenye Muteti [2019] eKLR, the Court was of the view that;“it is therefore clear that it is upon the Appellant to trigger the process of the giving of directions and an Appellant who sits on his/her laurels and when confronted with an application to dismiss the suit contends that no directions have been given when he has not moved the court to give the directions cannot but face censure from the court.To contend that an application for dismissal of an appeal is premature for failure to give directions when the Appellant himself has not moved the court to give directions to my mind cannot be taken seriously where the delay is contumelious. Nothing bars the court from dismissing the appeal even where no directions have been given…”See also Abraham Mukhola Asitsa vs Silver Style Investment Company Ltd [2020] eKLR.I therefore have to consider whether the prolonged delay could be excused, and if so, whether justice could still be done despite the delay as stated in the case Ivita vs Kyumu [1984] KLR 441.

15. There is no doubt that the delay in this matter is inordinate and the explanation stated not persuasive. On the other hand, to deny a party who wishes to be heard on appeal the chance to be heard is draconian. In the premises, the interest of both parties must be balanced – see alsoPeter Kiprui Chemoiwo vs Richard Chepsergon [2021] eKLR, and John Njagi Korua vs Njiru Gatimu [2021] eKLR. In very similar circumstances, the courts held that despite the inordinate delay, justice could still be done and allowed the Appellant to progress the hearing of the appeal upon conditions.

16. In the premises, and to balance the parties interests, and for purposes of expediting the hearing of the appeal, I make the following Orders:1. The Appellant shall file the Record of Appeal and serve within 45 days of this order.2. Thereafter, the appeal shall be listed for directions within 21 days of filing of the Record of Appeal (see (1) above).3. The Appellant shall pay throw away costs to the Respondent assessed at Kshs. 30,000/= within 30 days of this order. In default, the above orders shall automatically lapse.Orders accordingly.

DATED SIGNED AND DELIVERED THIS 16TH DAY OF JUNE 2022. J.N. MULWAJUDGE