[2017] KEHC 3252 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. 225 OF 2013

1. THE HEADMASTER.................................................................1ST APPELLANT

2. THE CHAIRMAN, SCHOOL MANAGEMENT

COMMITTEE OF KARI-MWAILU DAY &

BOARDINGPRIMARY SCHOOL.....................................................2ND APPELLANT

3. THE HON. ATTORNEY GENERAL...............................................3RD APPELLANT

VERSUS

JAMES KISILU MBWIKA t/aWANANCHI STORES ............................RESPONDENT

RULING OF THE COURT

1. The third Appellant/Applicant has filed a Notice of Motion dated 24/07/2017 and a Certificate dated 2/08/2017 seeking for the following reliefs:-

(a)That the Honourable Court’s orders dismissing the Appellant’s Appeal on 22/09/2016 be reviewed and or set aside.

(b)That the Honourable Court be pleased to reinstate the Appellants Appeal dated 11/11/2013.

(c)That there be stay of execution pending the determination of the Appeal.

2. The Application is supported by an annexed affidavit of Christopher Siro learned counsel for the Applicant sworn on even dates and further on the following grounds:

(a)That the Application for dismissal of the Appeal was not served upon the Applicant.

(b)That the Applicant came to learn about the dismissal when the 1st and 2nd Appellants were served with a Notice to Show Cause which is a subject of the hearing at the Chief Magistrate’s Court.

(c)That the Respondent has already extracted a Notice to Show Cause against the Applicants.

(d)That it is only fair and just that the Appeal be reinstated to enable the Appellant/Applicants to file a record of Appeal now that typed proceedings have been supplied.

(e)That no prejudice will be suffered by the Respondent if the orders herein are allowed.

(f)That the Applicant had not been made aware of the dismissal of the Appeal and further that the failure by learned counsel to attend court was due to inadvertence, error or mistake that should not be visited upon the innocent clients.

(g)That the 1st and 2nd Appellants is a public school owned by the Government of the Republic of Kenya and its properties are Government Properties which should be protected and that the government has the capacity to satisfy the decree once the Appeal is finalized.

3. The Applicant’s Application is strenuously opposed by the Respondent who filed replying affidavit dated 4/8/2017 raising the following grounds of objection:-

(a)That upon the Applicant lodging the Appeal herein abandoned the same for a long time until the Respondent was compelled to set it down for directions and thereafter the Memorandum of Appeal was struck out together with any proceedings relating thereto when they failed to attend court or even to file record of Appeal.

(b)That pursuant to the dismissal, the lower court file was returned back to the lower court for execution proceedings to take place.

(c)That the Application is misconceived and is an abuse of the Court process and it should not be granted since the Applicant upon obtaining stay orders from the lower court sat on the same for three (3) years without taking any proactive steps to prosecute the Appeal until it was dismissed.

(d)That the Respondent has been greatly prejudiced as he has been holding on to a money decree issued in 2013 to date.

(e)That there is no Appeal capable of being reinstated and that there is no Appeal on the basis of which execution of the lower Court’s decree can be stayed by this Honourable Court.

(f)That the Application should be dismissed since there must be an end to litigation.

4. Counsels for the parties herein canvassed the Applications by way of oral submissions. Mr. Motende for the Applicant started by stating that the Application dated 2/08/2017 had been filed pursuant to the Respondent taking out a Notice to show Cause despite the pendency of the initial Application dated 24/07/2017 seeking for reinstatement of the Appeal and stay of execution. According to Mr. Motende, the proper Application for the purposes of his clients was the one dated 24/07/2017 since the one dated 2/8/2017 only dealt with the urgency of the earlier Application.

It was submitted for the Applicant that the Applicant was not aware of the

proceedings leading to the dismissal of the Appeal and that they only came to learn of the same after the Respondent took out a Notice to Show Cause. Learned Counsel submitted that the delay had been caused by the lack of supply of court proceedings from the lower Court. It was submitted for the Applicant that the Appeal would be rendered nugatory unless stay of execution is granted. Counsel finally submitted that the Applicant be given some timelines within which to file the Appeal and that the Respondent could be compensated by way of costs since it will set a bad precedent for a public school to be auctioned.

Mrs Nzei for the Respondent submitted that the Respondent had obtained a valid judgement in the lower court and that the Applicant thereafter filed a memorandum of Appeal but failed to pursue the Appeal which culminated in the dismissal on the 30/11/2016. She further submitted that the Applicant deliberately failed to prosecute the appeal forcing the Respondent to move the Court for directions and subsequently secured a hearing date in which the Applicant was ordered to file record of appeal within a certain time frame. The Respondent maintains that all through from 22/10/2015 to the 30/11/2016 he duly served the Applicant for all the dates and that on the 22/09/2016 when matter was fixed for hearing on 30/11/2016 the Applicants Counsel was present and was further served with a hearing notice nonetheless and when the Applicant failed to turn up for the hearing, the Court was left with no option but to order the dismissal of the Appeal in line with the provisions of Order 42 Rule 20 of the Civil Procedure Rules. Further it was submitted for the Respondent that the Applicant had not been prevented by any sufficient cause to attend court and prosecute the appeal since they had been aware of the hearing date and further the prayer for review cannot be granted since there is no discovery of new evidence unknown at the time of the dismissal or errors or sufficient reasons to warrant the same. Finally it was submitted for the Respondent that the Applicant is seeking to whip sympathy by claiming that the school is a public institution yet they are bodies corporate with capacity to enter into contracts and can sue or be sued in their capacities and therefore the Applications should be dismissed so as to enable the Respondent access the fruits of the judgment as there must be an end to litigation.

5. Determination:-

I have considered the Applicants two Applications dated 24/07/2017 and 2/8/2017 together with the affidavits and annextures in support. I have also considered the replying affidavits of the Respondent. I have also considered the submissions of the learned counsels for the parties. It is not in dispute that the Applicants Memorandum of appeal and related proceedings was dismissed by this Honourable Court on the 30/11/2016. It is also not in dispute that the Applicant had been ordered on two occasions namely 20/07/2016 and 22/09/2016 to file record of appeal and that the Applicant failed to do so. It is also not in dispute that upon dismissal of the appeal, the lower court file was released to the lower court to enable the Respondent proceed further in view of the fact that earlier orders of stay of execution granted by the lower court lapsed following the aforesaid dismissal of the Appeal. The issue now for determination is whether or not the Applicant has presented sufficient reasons to warrant an order of review/reinstatement of the dismissal order and stay of execution of the decree herein.

The Applicant has presented two reasons namely that they had not been supplied with certified copies of proceedings and further that they were not aware of the hearing date namely 30/11/2016. It is noted that the lower court file had already been availed to the High court for the purpose of the Appeal and that upon the striking out of the Memorandum of Appeal on the 30/11/2016 the file was released to the lower court. It therefore beats logic for the Applicant to claim that no proceedings were ever supplied to them all this time until July, 2017 when the present Application was made. The Applicant has not even presented letters or correspondences addressed to the lower Court or even a certificate of delay in the supply of proceedings by the lower Court. It was not possible for this court on 22/09/2016 when both learned counsels were present to have the matter fixed for hearing on the 30/11/2016 if indeed there were no lower court file and proceedings. Even if the proceedings delayed, it was the responsibility of the Applicant to pursue the same from the lower Court. Indeed the Applicant was ordered to prepare the record of appeal on the 20/07/2016 and 22/09/2016 but they did not do so. The Applicant has not given any plausible explanation why they could not comply with the order of the court. I am therefore not convinced by the said explanation by the Applicant and find that the Applicant deliberately ignored the order of the court and has only come forward now after the Respondent has commenced execution of the decree by taking out a Notice to show Cause.

As regards the second explanation offered by the Applicant namely that they were not aware of the hearing date for the Appeal. The record of the proceedings herein reveals the contrary. The Applicants counsel one Miss Chibole was present in court on the 22/09/2016 when matter was to proceed and she sought for adjournment and matter was rescheduled to the 30/11/2016 for hearing and the Applicant was given another 14 days within which to file the record of appeal. On the 30/11/2016 the Applicant had neither attended court for the hearing nor had filed any record of Appeal and therefore the Respondent sought for the dismissal of the Appeal pursuant to the provisions of Order 42 Rule 20 of the Civil Procedure Rules. The Respondent in his replying affidavits has given a chronology of the steps he took towards the finalization of the Appeal right from the 22/10/2015 upto the date of the dismissal on 30/11/2016. The Respondent has annexed the mention and hearing notices as well as Affidavits of service and that even when the Applicants counsel was present on 22/09/2016 the Respondent went ahead to effect service of hearing notices even though the hearing date had been taken by consent. The conduct of the Respondent all through had been one of a diligent litigant while the Applicants exhibited indolence on their part and therefore the court agreed with the Respondent’s request on the 30/11/2016 and thus the memorandum of Appeal and related proceedings were struck out.

From the above findings, it is therefore quite clear that the Applicant has not demonstrated that they were prevented by any sufficient cause to attend court when the Appeal was called out on the 30/11/2016. Again on the issue of review it is noted from the record that no orders of dismissal were made on the 22/09/2016 as alluded to by the Applicant since on that date the matter was taken out and rescheduled to 30/11/2016 upon the request of the Applicant’s counsel. Even if it was to be assumed that the correct date was to be the 30/11/2016, I find the Applicant has not shown that there is discovery of new evidence or matter unknown at the time of the dismissal order or that there are sufficient reasons to warrant for an order of review under order 45 Rule 1of the civil Procedure Rules.

Finally the Applicant has raised the issue that the 1st and 2nd Appellants are public Institutions (school) which should not be auctioned. The Applicant’s Institution is a Secondary School and pursuant to the Education Act Cap 211 Laws of Kenya is a body corporate with capacity to enter into contracts and can sue or be sued in their capacities. That being the position, the Applicants Counsel’s submissions that the auctioning of the school will set a bad precedent is not convincing for the reason that the said school having capacity to sue and be sued has been properly sued by the Respondent. The Respondent was duly awarded a money decree and should not be unduly kept away from the fruits of the judgment. The Respondent has shown that he has been the one who has been pushing for the matter to be heard and concluded while the Applicants have been rather reluctant to prosecute their Appeal. It is only fair and just that litigation should come to an end.

As the Applicant has not demonstrated that an order for review and reinstatement is merited, I find the prayer for stay of execution of the decree is also not merited in the circumstances.

6. In the result it is the finding of this court that the Applicants Applications dated 24/07/2017 and 2/08/2017 lacks merit. The same are ordered dismissed with costs to the Respondent.

It is so ordered.

Dated, signed and Delivered at MACHAKOS this 7th day of September, 2017.

D. K. KEMEI

JUDGE

In the presence of:-

Siro for appellants/Applicants

Munyao for Mrs Nzei for Respondent

C/A: Kituva