[2017] KEHC 1587 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CIVIL APPEAL NO. 115 OF 2013

JANE GUAMA NJAGI.............................................APPELLANT

-VERSUS-

JENET WAMALWA NJAGI..............................1ST DEFENDANT

PHILIS KARIUKO NJAGI.............................2ND RESPONDENT

RULING

1. The 1st respondent Jenet Wamalwa Njagibrought a Notice of Motion dated 25th May, 2017 seeking an order that the appeal be declared as having abated. In the alternative the Court to be pleased to dismiss the appeal for want of prosecution. That costs be provided for. The appeal is based on the following grounds:

(a)On 6th November, 2012 the appellant’s advocates hereininformed the court that the appellant had passed on24th August, 2012 and needed time to substitute.

(b)He asked for time to substitute the appellant with his legalrepresentative, a mention date was given for 18th December, 2012.

(c)By 18th December, 2012, and indeed to date the appellant hasnot been substituted.

(d)One year having lapsed the appeal has already abated.

(e)The appeal should also be dismissed for want of prosecution.

2. The 2nd respondent Philis Kariuko Njagi did not oppose the motion.

3. The Appellant Jane Guama Njagi who is stated to have passed away though served through her advocate, did not oppose the application. From the record, on 31st October, 2013 the parties, represented by Wanjiru for Maina Kagio and Igati Mwai for applicant, entered a consent on an application dated 9th July, 2013 whereby the appellant was substituted by one Joseph Mwangi Njagi. It was also agreed by consent that the appellant to file and serve the record of appeal within the next 30 days. The appellant filed a record of appeal on 2nd December, 2013 and served the respondent. Thereafter the Court made orders for this appeal to be consolidated with other appeals which were filed in Embu. The Court further gave directions that the appeal to proceed by way of oral submissions. That was on 17th June, 2015.

4. After that the Appellant did not take any action until the 1st Respondent filed the application for dismissal of the appeal for want of prosecution and on assertion that the appeal has abated. It is however, clear that the present application is misleading in as far as it is based on the ground that the deceased appellant was not substituted and that the suit has not been prosecuted since 18th December, 2012. As I have stated the substitution of the appellant was allowed by consent and thereafter directions on hearing were given on 17th June, 2015.

5. The issue is whether the appeal has abated. Under Order 24 rule 1 Civil Procedure Rules, it is provided that, ‘the death of a plaintiff or a dependant shall not cause the suit to abate if the cause of action survives or continues’. Order 24 rule 3 thereof provides:

“1) Where one of the two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

2) Where within one year no application is made under sub rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff.”

The Appellant was substituted by consent. The provision does not apply. The application is misconceived and based on ignorance. It is a vain application for a party to urge the Court to declare that the suit has abated when he consented to the substitution of the appellant. Joseph Mwangi Njagi who substituted the Appellant is for all intents and purposes the current appellant. The appeal is properly on record and has not abated.

6. I have now to consider the alternative prayer for dismissal of appeal for want of prosecution. The parties were last before Court on 17th June, 2015, a period of almost two years at the time this application was filed. The counsel on record for the Appellant was duly served with the application. He did not file a replying affidavit or grounds of opposition. No explanation has therefore been offered for the delay in prosecuting the appeal. A delay of nearly two years is no doubt unreasonable and particularly in a case no explanation has been offered. The Appellant has not displayed any willingness to prosecute the appeal in view of the fact that he was made aware of this application. He could show that by challenging it with grounds based on points of law or offer factual explanation in a replying affidavit. He did none of these but went into a slumber. It can safely be stated that the Appellant has lost interest in the appeal. In a persuasive decision in Sotik Tea (K) Ltd. -V- Duncan Momanyi Nyaribari (2016) eKLR where the appeal was dismissed for want of prosecution, the Court stated:

“It is noted that the appellant did not file a replying affidavit. This would have been helpful as it would have accorded him the opportunity of putting in annextures indicating what steps it had undertaken in ensuring that the appeal was prepared for hearing. What is apparent from the record before this court is that after filing the appeal, the appellant went into slumber. There is nothing to show that it undertook any of the relevant steps within the time prescribed by the rules.

This court where and when necessary can invoke its inherent jurisdiction under Section 3A and the overriding objectives under Section 1A and 1B of the Civil Procedure Act and Article 159 (2) (b) of the Constitution so as to prevent abuse of court process”.

I find the Appellant in the present case went into slumber and was indolent. This is an old appeal of 2013, three years have lapsed. Justice delayed is justice denied.I agree with the statement and I am of the view that the Court will not hesitate to strike out the appeal where a party despite being aware of the consequences of this application succeeding has decided to sit back, and not offer any explanation for the delay or show the steps taken if any to prosecute the appeal. The Appellant has not given the Court an option other than to strike out the appeal. He has shyed away from the wealth of provisions under which the Court would have exercised discretion to hear the appeal rather than striking it out. This includes Article 159 of the Constitution Section 1A and 1B and 3A Civil Procedure Act among others. As it were there is nothing to show that the Appellant is still interested in this appeal. I am of the view that the prayer for striking out the appeal for want of prosecution has merits. I allow the prayer and order that the appeal be dismissed with costs for want of prosecution.

Dated and delivered at Kerugoya this 7th day of December, 2017.

L. W. GITARI

JUDGE

Ruling read out in open Court, Mr. Maina Kagio for Respondent, Petitioner absent, court assistant Naomi Murage this 7th day of December, 2017.

L. W. GITARI

JUDGE

7. 12. 2017