[2022] KEHC 1442 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 299 OF 2016

GEORGE KIMANI MWANGI.....................................1ST APPELLANT/RESPONDENT

OSAKA MOTORS LIMITED......................................2ND APPELLANT/RESPONDENT

-VERSUS-

JOSEPH MWORIA NJOROGE..........................................RESPONDENT/APPLICANT

RULING

1. The respondent/applicant (“the applicant”) in this instance tookout the Notice of Motion dated 8thFebruary, 2021 and sought for an order to the effect that the 1stand 2ndappellants’/ respondents’ (“the respondents”) appeal be dismissed for want of prosecution with costs.

2. The Motion is supported by the grounds presented on its faceand the facts stated in the affidavit of advocate JonathanOmangi.

3. To resist the Motion, Allan Odongo swore a replying affidavit onbehalf of the respondents.

4. When the Motion came up for interparties hearing before thecourt, the parties were directed to file and exchange writtensubmissions.

5. I have considered the grounds laid out on the face of theMotion, the facts deponed in the affidavits supporting and resisting the Motion, and the contending written submissions and authorities relied upon.

6. It is clear from the instant Motion that the sole issue fordetermination before me is whether the appeal filed by the respondents is ripe for dismissal.

7. On the one hand, the applicant through his advocate JonathanOmangi, states and submits that since lodging the appeal back in 2016, the respondents have not taken any active steps towards prosecuting it and that this is a clear indication that they have lost all interest in their appeal.

8. The applicant is of the view that sustaining the appeal will causehim great prejudice in view of the judgment delivered by the trialcourt in his favor.

9. In retort, the respondents on the other hand state and submitthat the delay is excusable in view of the fact that their advocate had previously written to the Deputy Registrar requesting for a follow-up of the lower court file, which is yet to be forwarded to the High Court-Civil Appeals Division in order for the appeal to be admitted for hearing.

10. The respondents further submit that the applicant has notdemonstrated the prejudice, if any, that he stands to suffer if the appeal is sustained, given that the decretal sum was deposited in a joint interest earning account on 5thOctober, 2016 as security pending the hearing and determination of the appeal; adding that if the appeal is dismissed at this stage, the respondents stand to be greatly prejudiced having sacrificed their right of appeal.

11. Order 42, Rule 35 of the Civil Procedure Rules, 2010 cited inthe applicant’s submissions, provides for the circumstances and manner of dismissal of an appeal as follows:

“(1) Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.

(2) 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.”

12. From the record, it is apparent that the respondents filed theirmemorandum of appeal in 2016, followed by their record ofappeal on 13thNovember, 2017.

13. Going by the record, it is apparent that the Deputy Registrar-Civil Division requested for the lower court file to be availed to the High Court-Civil Appeals Division. It is apparent that the aforesaid correspondence did not elicit any response.

14. The record also shows that the respondents’ advocate by way ofthe letter dated 5thAugust, 2019 addressed to the Deputy Registrar, wrote to inform her that the record of appeal had been filed and to request that the file be placed before a Judge for directions on the hearing of the appeal.

15. Upon my perusal of the record, it is apparent that in the absenceof the lower court file pertaining to this matter, directions are yet to be given in respect to the appeal and consequently, the appeal is yet to be set down for hearing. It therefore follows that the appeal cannot be deemed to be ripe for dismissal under the provisions ofOrder 42, Rule 35(1)(supra).

16. There is also nothing to indicate that the Deputy Registrar hassince listed the appeal before a judge for dismissal pursuant to the provisions ofOrder 42, Rule 35(2)(supra).

17. In the end, I find the motion dated 8th February 2021 to bepremature. The same is ordered struck out with costs abiding the outcome of this appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 18TH DAY OF MARCH, 2022.

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

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the 1st and 2nd Appellants/Respondents

……………………………. for the Respondent/Applicant