[2022] KEHC 9832 (KLR)

International Chamber of Commerce/International Court of Arbitration v Technoservice Limited (Civil Appeal E223 of 2020) [2022] KEHC 9832 (KLR) (Civ) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 9832 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E223 of 2020

JN Mulwa, J

June 16, 2022

Between

International Chamber of Commerce/International Court of Arbitration

Appellant

and

Technoservice Limited

Respondent

Ruling

1. Before court is a Notice of Motion dated 7th February 2022 brought by Technoservice Limited, the Respondent herein, seeking for orders that the Appellant’s Appeal herein be dismissed with costs for want of prosecution.

2. The Application is based on the grounds on its face and supported by the Affidavit of Valentine Ataka, an Advocate of the High Court of Kenya. In summary, the Respondent’s case is that on 9th December 2020, this court granted the Appellant leave to file its Appeal, subject to payment of security for costs. However, the Appellant has failed to prosecute its appeal and has never filed its Record of Appeal. Further, that the Appellant continues to unduly enjoy orders of stay of execution while delaying the progression of the Respondent’s claim in the lower court where the Appellant is merely an Interested Party.

3. In opposition, the Appellant filed Grounds of Opposition dated 14th April 2022 and a Supplementary Affidavit sworn by Victor Njenga, an advocate practicing in the firm of Kaplan & Stratton Advocates that has the conduct of the appeal on its behalf. The Appellant contended that it is desirous of prosecuting the appeal but has been prevented from doing so by multiple attempts by the Respondent to have the matter determined on a technicality regarding compliance with the court’s Order of 9th December 2020 on depositing of security for costs. Further, that on 24th January 2022, counsel instructed the firm's court clerk to fix the appeal for mention but this could not happen as the present application had just been filed.

4. The application was canvassed by way of oral submissions. Counsel for the Respondent, Mr. Ataka, submitted that Order 42 Rule 35 of the Civil Procedure Rules on dismissal of appeals for want of prosecution is a mandatory provision. He argued that there is nothing on record to show that the Appellant has set the appeal down for hearing since December 2020. Further, Mr. Ataka took issue with the fact that the Appellant has not applied for leave to be allowed to file the Record of Appeal out of time. He also faulted the Appellant for falsely deposing that there have been some activities on the file whereas it is the Respondent who has been requesting for mentions. However, counsel urged that if the court is not inclined to dismiss the appeal, then it should order that the Record of Appeal be filed within the shortest period and the Appellant be condemned to pay throw away costs.

5. On the other hand, learned counsel for the Appellant, Mr. Kahutha, submitted that they have been trying to get a copy of the lower court file with no success. He blamed the Respondent for interfering with the progress of the appeal and urged court not to lock out the Appellant from prosecuting the appeal.

6. Before delving into the merits of the application, it is noteworthy that the Article 159(2) (d) of the Constitution and Order 17 Rule 2 of the Civil Procedure Rules which the Respondent has invoked are not applicable to the instant application. Article 159(2) (d) of the Constitution obligates the courts to administer justice without undue regard to procedural technicalities. On the other hand, Order 17 Rule 2 of the Civil Procedure Rules concerns dismissal of suits in a trial court for want of prosecution.

7. Dismissal of appeals for want of prosecution is provided for under Order 42 Rule 35 which states:“(1)Unless within three months, after granting 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.”

8. In the case ofIvita v Kyumba [1984] KLR 441 the court stated that:“The test applied by the courts in the application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is, whether justice can be done despite the delay. Thus, even if the delay is prolonged, if the court is satisfied with the plaintiff’s excuse for the delay, and that justice can still be done to the parties, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest time. It is a matter of and in the discretion of the court.”

9. In the instant case, the Appellant filed its Memorandum of Appeal on 2nd October 2020 followed by an application for stay. On 9th October 2020, it obtained an interim stay of execution of the impugned ruling and the order has been extended from time to time. Notably however, the Appellant has never filed the Record of Appeal. Counsel for the Appellant claims that they had been trying to obtain a copy of the lower court file to enable them prepare the Record of Appeal. However, he has not exhibited any proof of efforts made or action taken towards obtaining the same such as communication between the firm and the Deputy Registrar of this court or the Executive Officer of the trial court.

10. All that the Appellant has annexed to the Supplementary Affidavit sworn by its advocate are documentation demonstrating compliance with this court’s order of 9th December 2020 on depositing security for costs which are irrelevant to this application. Suffice it to add, the Appellant cannot claim that the Respondent’s inquiries on compliance with the above order affected the progress of the appeal in any way because it was upon it to do the needful in the circumstances. It seems that once the Appellant deposited the security for costs on 1st February 2021, which is over 1 year and four months ago, it went into slumber and was only woken up when the Respondent filed the instant application.

11. What this means is that there has been a prolonged delay in prosecuting the appeal and the Appellant has not offered any cogent or reasonable explanation for the same. Whereas I appreciate that courts ordinarily frown upon driving a party out of the seat of justice, one who has exhibited utmost laxity and disinterest in their matter should not be allowed to continue holding the other hostage. The Appellant’s right to appeal against the decision of the trial court must be weighed against the Constitutional and statutory requirement to administer justice expeditiously and/or without undue delay. In my considered view therefore, justice can only be done in this case by dismissing the appeal herein for want of prosecution.

12. For the foregoing, the Respondent’s Notice of Motion dated 7th February 2022 has merit and is hereby allowed as prayed.Orders accordingly.

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