[2015] KEHC 2633 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CIVIL APPEAL NO 114 OF 2012

HEZRON ALOIS NYACHAE…………….……………….........................……….……….…APPELLANT

VERSUS

JAMES OBIRI OENGA…………………………………..…..........................….….…1ST RESPONDENT

JOHN MURARO…………………………………………..........................…….….…2ND RESPONDENT

RULING

The respondents pray that this appeal be dismissed. By a notice of motion dated 18th February 2014, the respondents aver that they have never been served with the memorandum of appeal; that the appeal is dormant; and, that no steps have been taken by the appellant to set down the appeal for hearing since the year 2012. Those matters are buttressed by a deposition of the 1st respondent sworn on 18th February 2014. The pith of the motion is that the delays are inexcusable and prejudicial to the interests of the respondents.

The appellant opposes the application. There is a replying affidavit sworn by the appellant on 25th June 2014. He deposes that the appeal was not admitted; and, that if that be the case, he or his counsel have never been notified; that if there has been a delay, the blame lies with his counsel; that he should not be blamed for the sins of his counsel; that he is keen on prosecuting the appeal; and, that no prejudice will be suffered by the respondents if the appeal proceeds for hearing.

On 14th July 2015, learned counsel for the applicant and respondent appeared before me and made brief oral submissions. I have considered the rival arguments. I have also paid heed to the records before me, the pleadings, and depositions.

The memorandum of appeal was lodged on 29th October 2012. The record of appeal was filed on 5th April 2013. I have seen the standard form affixed on page 1 of the court record. The appeal was admitted by Ngenye-Macharia J on 4th October 2013. It is thus not true as urged by the appellant or his counsel that the appeal has never been admitted. The judge also directed that the record of appeal be served.

Order 42 rule 12 required the Registrar to notify the appellant that the appeal had been admitted. The notification was not issued. But it must never be forgotten that in our adversarial system of justice, it remained the primary obligation of the appellant to follow up on his appeal. I would have excused the appellant, if he had exhibited even one letter addressed to the Registrar enquiring about the status of his appeal. An appellant cannot go to sleep on the platform that the Registrar has never informed him of the fate of his appeal. See Anne Chege & another v Peter Musasya, Nairobi, High Court Civil Appeal 840 of 2003 [2006] eKLR, Daniel Okoko v Dan Owiti, Nairobi, High Court Civil Appeal 452 of 2003 [2006] eKLR.

The respondents claim they have never been served with the memorandum of appeal; and, that they only got wind of the matter when they perused the lower court file. In the written submissions, the appellant’s learned counsel concedes he served the memorandum of appeal only on 28th June 2014. That was well over one year and six months since the lodging of the appeal; and, well after the filing of the present motion for dismissal. Under Order 42 rule 12, the onus remained on the appellant to collect the memorandum of appeal and serve it upon the respondents.

Under Order 42 rule 13, the appellant was required to set down the appeal for directions twenty one days after service of the memorandum of appeal. By failing to serve the memorandum of appeal with expedition, the appellant created a bottleneck towards settlement of directions. Failure to take directions cannot thus be a shield to the present motion for dismissal.Daniel Okoko v Dan Owiti, Nairobi, High Court Civil Appeal 452 of 2003 [2006] eKLR.

I accept the appellant’s submission that the application for dismissal should be by way of chamber summons and not by a notice of motion. But I am then reminded that justice should be rendered without undue regard to technicalities. See article 159 (2) (d) of the Constitution. I also agree with the appellant’s submissions that under Order 42 rule 35 (2), the Deputy Registrar may list a dormant appeal for dismissal. But that is selective reading: Order 42 rule 35 (1) expressly authorizes an aggrieved respondent to move the court for dismissal if the appeal is not set down for hearing three months after taking directions. Like I stated, the appellant procrastinated in serving the memorandum of appeal and taking directions. He cannot now use the absence of directions as a shield to this action.

In the instant case, the truth is that the appellant has not taken any steps to list the appeal for directions or for hearing since the filing of the appeal. The memorandum of appeal was not served until a year and a half later and well after the respondents moved the court for dismissal. The application is thus well anchored upon Order 42 rule 35 (1) and properly before the Court.

The test in a matter of this nature was well laid out in Ivita v Kyumbu [1984] KLR 441. It is whether the delay is prolonged and inexcusable, and if it is, whether justice can still be done. In that event, instead of dismissal, the court may exercise its discretion to set the suit down for hearing.

The blame for failure to progress the appeal from the date of admission on 4th October 2013 rests entirely at the appellant’s doorstep or that of his counsel. Inordinate delay by the appellant has thus been established. The delay has not been well explained. It is thus inexcusable. See Ivita Vs Kyumbu [1984] KLR 441, Allen v McAlpine [1968] 1 All ER 543, Ramuka Agencies Ltd v Esther Wanjira Maina and another Nairobi, High Court ELC 1187 of 2007 [2012] eKLR.

I have also perused the decree that was appealed against. Judgment was entered against the appellant for the torts of false imprisonment and malicious prosecution. Each plaintiff was awarded Kshs 30,000 as damages for wrongful arrest; another Kshs 30,000 each for false imprisonment; Kshs 200,000 for malicious prosecution; and, Kshs 50,000 as special damages. Granted the decree, I would have expected the appellant to be a little more diligent in the matter. But the appellant filed an appeal and went to sleep. He was only awoken from deep slumber by the filing of the present motion for dismissal.

There is an overriding objective to do justice to the parties. It is in the interests of a fair trial that disputes be resolved expeditiously. Sections 1A and 1B of the Civil Procedure Act speak strongly to the duty of parties and counsel to assist the court to expedite justice. The respondents here are prejudiced by the existence of a stagnant appeal. The respondents cannot realize the fruits of their decree in the lower court. The dictates of justice and the inherent power of the court require, in circumstances such as these ones, to free the respondents from the hold of the appellant’s inert grip. I commiserate with the appellant for the predicament he now faces but justice is a two way street.

In the result, I order that the appeal be and is hereby dismissed. In the interests of justice, I order that each party shall bear its own costs.

It is so ordered.

DATED, SIGNED and DELIVERED at ELDORET this 1st day of October 2015.

GEORGE KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:

Ms. Karuga for Mr. Samba for the respondents instructed by C. O. Samba & Company Advocates.

No appearance for the appellant.

Mr. J. Kemboi, Court clerk.