[2023] KEHC 25462 (KLR)

Gathanwa & 2 others v Owuor (Civil Appeal 10 of 2014) [2023] KEHC 25462 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25462 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 10 of 2014

SM Mohochi, J

November 21, 2023

Between

Wairimu Gathanwa

1st Appellant

Francis Ng’ang’a Gaitho

2nd Appellant

Joseph Gitau Muiruri

3rd Appellant

and

Monica Atieno Owuor

Respondent

Ruling

1. Before the Court for determination is the Notice of Motion dated 11th August, 2022. It was filed herein 17th August 2021 by the Appellant/Applicants pursuant to sections 1A, 1B, 3A and 95 of the Civil Procedure Act and Order 45 Rule 6, Order 42 Rule 21, Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules and all enabling provisions of the Law, for the following orders:i.Spentii.Spentiii.That pending the hearing and determination of this application inter-partes there be an order of stay of execution of the judgment of Honourable judge issued on 29th November, 2021 dismissing the Appeal and all consequential orders and proceedings hereto and be and hereby issued.iv.That the Appeal be and is hereby reinstated for hearing and determination in the normal way with time to serve the record of Appeal be enlargedv.That this Honourable Court do make any such further orders and issue any other relief it may deem just to grant in the interest of justice.vi.That costs of the Application be in the cause.

2. The application is premised on the grounds on the face of the Application and the Supporting Affidavit of Victor Ng’ang’a, advocate sworn on 11th August 2022. He deponed that that this appeal was dismissed on 29th November, 2021 for want of prosecution. That the Notice to Show Cause nor the Application had been served on the Appellants prior to the dismissal; That delay was beyond the Appellant’s control and despite efforts, the appellants were not able to file their Record of Appeal. He annexed copies of the letters to court as Annexure “VN-1” and “VN-2” to the Supporting Affidavit.

3. He averred that the Appellants paid security deposit pending hearing and determination by sending Kshs. 285,306 to the Respondent’s advocates and deposited Kshs. 285,306 in a joint account. He annexed copies of the payment advice dated 5th November, 2014 and cheque dated 4th November, 2014 as Annexure “VN-3” and “VN-4”;

4. He averred that the delay cannot be attributed to the Appellants as to prejudice the Respondent and such delay can be compensated by way of costs. That should the orders sought not granted the Appellants stand to suffer prejudice irreparable loss. He averred that the Constitution under Article 48 guarantees access to justice and under Article 159 (2) (d) enjoins the court to administer justice without undue regard to procedural technicalities; that the Appellants are keen on prosecuting the appeal; and that the Appeal is arguable and should be reinstated.

5. The Application was opposed by the Respondent and a Replying Affidavit to that effect, sworn by Monica Atieno Owuor filed 25th May, 2023. She deposed that application is bad in law, an after thought and an abuse of the court process. That judgement was delivered on 3rd December, 2003 in her favour and since the Appeal was file in 2014 the Appellant’s have never taken any steps to have the same set down for directions or prosecute the Appeal.

6. That the letters annexed by the Appellants show that they are guilty of lethargy since they only followed up on the Appeal in the year 2017 as there was no follow up done in the previous years. That the delay was inordinate without reasonable explanation.

7. The Application was disposed of by way of written submissions. The Respondent filed written submissions on 27th July, 2023. On record there are no submissions by the Appellant’s.

Respondent’s submissions 8. Through counsel, the Respondent submitted on the principles of setting aside an order for dismissal for want of prosecution and relied Stephen Kipsang T/A Springwood College v Tami Kipkurui & 2 Others (2017) eKLR where the court cited Mwangi S. Kaimenyi v Attorney General & Kenya Institute for Public Policy and Research 2014 eKLR; whether there has been inordinate delay on the part of the plaintiff in prosecuting the case; whether the delay is inordinate contumelious and therefore inexcusable; whether the delay is an abuse of the process of the court; and whether the delay gives rise to substantial risk to a fair trial or causes serious prejudice to the defendant.

9. It was submitted that the Appellants have not demonstrated how they found out that the Appeal had been dismissed if they were not aware of the dismissal date. That it was an indication that they were aware of the dismissal date but failed to show up and waited till the Appeal was dismissed for them to bring the present application which is an abuse of the court process and an afterthought.

10. The Respondent further submitted that there is no seriousness on the part of the Appellants as they were the cause of the delay of 3 years from the time judgement was entered up to the year 2017 when the Appellants sought proceedings. That since the year 2018 when they wrote the other letter till dismissal, it was another 3 years without efforts; that they also failed to show up to court when the matter came up for notice to show cause and further that it took the Appellants another 7 months form 29th November, 2021 when the Appeal was dismissed to file the instant Application. The delay cannot be excused.

11. The Respondent contends that the Appeal is a waste of court’s time and a way of delaying the Respondent from enjoying fruits of his judgement yet the Appellants lost interest in the Appeal. That the stay given to the Appellant was enjoyed to the detriment of the Respondent which encouraged them to move with laxity. And that the Appeal should be dismissed.

Analysis and Determination 12. The main issue for determination in the present application is whether the prayers sought should issue?

13. On the issue of setting aside order the court needs to analyse on whether the Appellant’s have laid a basis for the court to exercise its discretionary power of setting aside orders?

14. The Court in Mbogo & AnothervsShah EALR 1908 laid down the principle where the court can exercise it discretion to set aside orders in the nature if dismissal, in order to void injustice or hardship resulting from an accident, inadvertence or excusable mistake or error. Consequently, the same discretion should not be applied to assist a litigant who intentionally seeks to delay the course of justice.

15. The law on setting aside of ex parte orders is found under Order 51, rule 15 which provides that“the court may set aside an order made ex parte.”

16. In this case, the Appellants filed a Memorandum of Appeal on 23rd January, 2023 2014 and the same was admitted on 15th May, 2014. The Appellants’ advocate averred that Appellants were not aware of the dismissal or the notice to show cause. From the record, I note that there is a Notice to Show Cause why the Appeal should not be dismissed for want of prosecution dated 25th October, 2021 sent to the parties’ advocates. It appears that the Notice was sent to both advocates on record but was only received by the firm of Gekonga & Company Advocates who received it on 25th November, 2021 4 days to the dismissal. There is no record on whether the Appellants or their advocates were served.

17. In Kenya Power & Lighting Co. Ltd Vs Kenya Cold Storage 1964 Ltd HCCC No.387 of 2002 Hon. Lady Justice Hannah Okwengu (as she then was) held as follows:“Nevertheless, dismissal of a suit under OXV1 Rule 2(1) of the Civil Procedure Rules requires that notice be given to the parties to appear before the court to show cause why the suit should not be dismissed before any order of dismissal is made”.

18. The import of the preceding authority is that before a suit is dismissed the parties have to be informed since a dismissal is not a light matter.

19. The dismissal of the Appeal was done on 29th November, 2021 where only the advocates for the Respondent were present. The Appellants thereafter filed the instant Applications 7 months later after the dismissal. The question begs is why the Appellants would fail to attend court for the dismissal then again wait for another 7 months to mitigate the dismissal during the August vacation period? The Appellant stood to lose more by the dismissal. It is my humble opinion, that it appears that neither the Appellants nor their advocates lawyer were aware of the Notice to Show Cause or the dismissal of the Appeal.

20. As to whether the Appeal should be reinstated, I also note that the Record of Appeal had not been filed for over nine years to date. Have the Appellants’ explained the delay and is the delay excusable? From the record, the Respondent filed an application seeking to dismiss the Appeal for want of prosecution dated 18th May, 2016 on 30th May, 2016. The Appellant in opposing the Application filed Grounds of opposition and a Replying Affidavit both dated 26th February, 2017 that the Application was premature and brought under the wrong provisions of law. It appears that the application was never canvassed.

21. The Appellants through counsel stated that the delay was due to the lack of documents for purposes of filing the Record of Appeal and annexed two letters dated 17th January, 2017 and 10th March 2018. There seems to be a delay of about 3 years from the time the Respondent filed the Memorandum of Appeal to the first time they sought copies of proceedings. This delay has not been explained. The Appellant’s filed another letter to court in the year 2018 and since then the Appellants have not taken any steps in prosecuting the Appeal. Again, there is a delay of about 3 years. In my opinion the Appellant slept on their rights and occasion the delay which I find to be inordinate.

22. The explanation given by the Appellants was that the court never availed the documents to them despite them requesting for he same. The Appellants have not explained what caused the delay for the 3 years before they sought proceedings. They have also not demonstrated why they never followed up on the proceedings since 2018. The explanation given by the Appellants was not plausible. This is a court of equity and ideally should not aid an indolent litigant.

23. I wish to also address the fact that there is also a letter on record dated 26th September, 2018 from the firm of Gekonga & Company Advocates, advocates for the Respondent, complaining to court of their attempt at tracing the file from the registry but to no avail. It seems the file could not be traced and court takes cognizant of that particular challenge.

24. Having found that the Appeal was dismissed without the knowledge of the Appellants, the court questions whether the same tilts in favour of the Appellant despite the way in which they were not vigilant. The Respondent seems to be the one following up on the matter other than the ones who instituted it.

25. Looking at the case of Arbuthnot Express Services Limited vs Manchester Outfitters Suiting Division Limited & Another [1989] LLR 5515 (HCK) the court observed as follows:-“The general principle of law is that as far as possible, the courts should lean in favour of the trial and determination of proceedings on merits. There are yet other principles viz that delay defeats equities and that he who comes to equity must come with clean hands. The court is duty bound to balance the application of all the principles by weighing one thing against another to see which way the balance tilts.”

26. In the circumstances of this case, the Appellants are not wholly to blame for the delay for the dismissal there was a lapse in service and notification. Despite the very long delay which should not be excused there is evidence that the Appellants made an attempt to follow up on the proceedings though very minimal, justice dictates that the court must not oust the Appellant from being heard on merit.

27. In the case of Philip Chemowolo &Another vs. Augustine Kubende, [1982-88] 1 KAR 103 the court observed as follows that:“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit ... the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.”

28. There was delay on the part of the Appellant this court also notes that the dismissal was irregular as the Appellants were not aware and were not afforded an opportunity to show cause why the Appeal should not have been dismissed.

29. The court is alive to the fact that there was a stay of execution of the judgment in Molo CMCC 171 of 2011. The stay orders were extinguished when the Appellants Appeal was dismissed. The court issued a temporary order of stay. The Appellants have pleaded that they had already complied with the stay conditions that had been given prior of depositing half of the decretal sum in a joint account and the other half released to the advocates of the Respondent and that there is imminent threat of execution.

30. The Respondent submitted that the stay of execution enabled the Appellants to move with laxity and further added that the issue of stay had already been dealt with and the same cannot be raised at this point. That the Appellants will not suffer prejudice if this Application is disallowed that the funds deposited should be released to the Respondent.

31. Dismissing the Appeal meant the stay was no longer in place. The Appellants have pleaded that that there is an imminent threat to execution. The Respondent averred that they will suffer prejudice since she will not enjoy her judgment.

32. In RWW v EKW [2019] eKLR, the court considered the essence of a stay of execution order pending appeal, and stated:“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.9. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”

33. In weighing whether the stay should be granted to the Appellants the court places reliance on John Nahashon Mwangi vs. Kenya Finance Bank Limited (in Liquidation) [2015] eKLR as follows:“The fundamental principles of justice are enshrined in the entire Constitution and specifically in Article 159 of theConstitution. Article 50 coupled with article 159 of theConstitutionon right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court. These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need not multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such act are comparable only to the proverbial ‘’Sword of the Damocles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a court of law should consider whether there are reasonable grounds to reinstate such suit-of course after considering the prejudice that the defendant would suffer if the suit was reinstated against the prejudice the Plaintiff will suffer if the suit is not reinstated.”

34. Having found that the dismissal was irregular and that the Appellant had already complied with the stay conditions, I have to also consider the rights of the Respondent and the fact that she has had to wait for nearly 10 years without prospects of realizing fruits of her judgment. I have taken into consideration that the Respondent has strongly opposed the reinstatement of the appeal herein for reasons that the Appellants were indolent and lost interest in the Appeal. The Appellants have sought refuge under Article 48 access to justice and 159 (2) on procedural technicalities.

35. The right to be heard is an important right in our Constitution and the foundation of the rule of law. This right should therefore not be taken away since it would be unjust and a miscarriage of justice bearing in mind that the Appellants have demonstrated the desire to be heard .

36. I am persuaded that I have to consider the provisions of Article 50 of Constitution on the right to fair trial and the requirements for dispensation of substantive justice under Article 159(2) (b) of Constitution. I find that dismissing this application will attract dire consequences as opposed to allowing the Appellants canvass the Appeal. I also find that the Respondent will not suffer prejudice or loss which cannot be compensated by way of costs if the appeal is reinstated.

37. I am persuaded that the application dated 11th August, 2022 has merit and consequently it is hereby allowed as follows; that:i.The order of 29th November, 2021 dismissing the Appeal for want of prosecution is hereby set aside and the Appeal is hereby reinstated.ii.That there be stay of execution of the judgment in Molo CMCC 171 of 2011 pending hearing and determination of the Appeal;iii.The Appellants to file and serve a record of appeal within sixty (60) days of this Ruling;iv.Thereafter, the Appeal to be listed for directions within fourteen (14) days after filing of the Record of Appeal.v.Failure to comply with (iii) and (iv) above, the Appeal shall stand dismissed;vi.Costs shall be in the cause

I so order.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 21ST OF NOVEMBER, 2023. MOHOCHI S.M.JUDGE OF THE HIGH COURT