[2019] KEHC 12133 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL APPEAL NO 728 OF 2016

JANE WAIRIRE.......................................................................1ST APPELLANT

ALI TRADING COMPANY....................................................2NDAPPELLANT

VERSUS

MORGAN ONYANGO.................................................................RESPONDENT

RULING

INTRODUCTION

1. The Respondent’s Chamber Summons application dated 18thFebruary 2019 and filed on 12th March 2019 was brought pursuant to the provisions of Section 1A, IB and 3A of the Civil Procedure Act and all other enabling provisions of the law. It sought the following orders:-

1. THAT the appeal be dismissed with costs for want of prosecution by the Appellant.

2. THAT the decretal amount depositedin the joint interest earning at NIC Bank in the Advocates’ names be released to the Respondent.

3. THAT the costs of this application be provided for.

2. The Respondent’s Written Submissions were dated and filed on 27thMay 2019 while those of the Appellantswere dated 10th June 2019 and filed on 11th June 2019.

3. Parties asked this court to render its decision based on their respective Written Submissions which they relied upon in their entirety. The Ruling herein is therefore based on the said Written Submissions.

THE RESPONDENT’S CASE

4. The Respondent’s present application was supported by the Affidavit of his advocate, Donald W. Muyundo,that was sworn on 18thFebruary 2019.

5. Through his advocates, the Respondent pointed out that judgment in CMCC No 7195 of 2009was delivered in the Respondent’s favour on 9th November 2016 whereupon the Appellants herein filed their Memorandum of Appeal on 2nd November 2016. He was served with the same on 13th January 2017.

6. He stated that the Appellants were granted a stay of execution pending appeal on condition that they deposit the decretal sum in a joint interest earning account in the names of advocates for both parties, which they did. He averred that since then, the Appellants had not taken any further action to list the matter for directions before a judge or to have the same listed for hearing.

7. He averred that his advocate had written to the Appellants’ advocates to establish the status of the matter but the said advocates had not responded to his as a result of which he suffered great inconvenience due to the Appellants’ disinterest to prosecute their Appeal herein.

8. He further contended that the Appeal was an abuse of the court process and was intended to deny him the entire fruits of his judgment.

9. He thus urged this court to allow his application as prayed.

THE APPELLANTS’ CASE

10. In response to the said application, on 3rd May 2019, the Appellants advocate, Allan Odongo, swore a Replying Affidavit, The same was filed on 9th May 2019.

11. Through their advocates, the Appellants reiterated the circumstances leading to them depositing the decretal sum as aforesaid. They stated that their advocates had written to the Executive Officer requesting for the typed proceedings but they had not obtained the same as the lower court file could not be traced. It was their contention that it was therefore not possible to compile a Record of Appeal. They pointed out that the delay in compiling the said Record of Appeal was not thus occasioned by them.

12. They added that the Appeal was yet to be admitted for hearing and consequently, they could not list the matter for directions. It was their averment that they were still keen on prosecuting their appeal and therefore asked this court not to oust them from the seat of justice.

13. It therefore urged this court to dismiss the Respondent’s present application.

LEGAL ANALYSIS

14. The Respondent submitted that it was not three (3) years since the Appellants filed their Memorandum of Appeal and reiterated that they had failed to list their Appeal for directions or to set it down for hearing. They placed reliance on the provisions of Order 42 Rule 11 and 13 of the Civil Procedure Rules, 2010 that requires that within thirty (30) days of filing the Appeal, an appellant shall cause the matter to be listed before a judge for directions under Section 79B of the Civil Procedure Act. It was their averment that the Appellants had failed to proceed accordingly and were employing delaying tactics.

15. In this regard, they relied on the case of Haron E Ongechi Nyaberi vs British American Insurance Company Limited Nairobi HCCA 110 of 2001 eKLR (sic) where it was held that it would be the appellant who should really cause the appeal to be listed before a judge for directions.

16. On their part, the Appellant submitted that there are two (2) avenues for the dismissal of an appeal for want of prosecution under Order 42 Rule 35 of the Civil Procedure Rules.

17. The first scenario was when an appellant failed to cause the matter to be listed for directions under Section 79B of the Civil Procedure Act as is envisaged in Order 42 Rule 11 of the Civil Procedure Rules. The second scenario was that if after service of Memorandum of Appeal the appeal would not have been set down for hearing, the registrar shall on notice to the parties list the appeal before the judge for dismissal as provided in Order 42 Rule 35 (2) of the Civil Procedure Rules.

18. They placed reliance on the cases of Jurgen Paul Flach vs Jane Akoth Flach [201] eKLR andUAP Insurance Company Limited vs Washington Gatura Kimani [2016]eKLRwhere the common holding was that an appeal will not be dismissed unless directions had been given.

19. Section 79B of the Civil Procedure Act provides as follows:-

“Before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree, part of a decree or order appealed against he may, notwithstanding section 79C, reject the appeal summarily”.

20. Order 42 Rule 13 of Civil Procedure Rules provides as follows:-

1) On notice to the parties delivered not less than twenty-one days after the date of service of the memorandum of appeal the appellant shall cause the appeal to be listed for the giving of directions by a judge in chambers.

2) Any objection to the jurisdiction of the appellate court shall be raised before the judge before he gives directions under this rule.

3) The judge in chambers may give directions concerning the appeal generally and in particular directions as to the manner in which the evidence and exhibits presented to the court below shall be put before the appellate court and as to the typing of any record or part thereof and any exhibits or other necessary documents and the payment of the costs of such typing whether in advance or otherwise.

4) Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say—

a) the memorandum of appeal;

b) the pleadings;

c) the notes of the trial magistrate made at the hearing;

d) the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;

e) all affidavits, maps and other documents whatsoever put in evidence before the magistrate;

f) the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal:

Provided that—

i. a translation into English shall be provided of any document not in that language;

ii. the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).

21. It is evident from the provisions of Section 79B of Civil Procedure Act that a judge has to peruse the appeal before he can summarily reject the same. These are the directions contemplated in Order 42 Rule 11 of the Civil Procedure Rules that states as follows:

“Upon filing of the appeal the appellant shall within thirty days, cause the matter to be listed before a judge for directions under section 79B of the Act”.

22. If the appeal is not summarily dismissed, then the registrar shall notify the appellant who shall then serve the Memorandum of Appeal upon all the respondents within seven (7) days of receipt of the notice from the Registrar in accordance with Order 42 Rule 12 of the Civil Procedure Rules.

23. After service of the Memorandum of Appeal, on notice to the parties delivered not less than twenty one (21) days, the appellant shall again cause the appeal to be listed before the judge for directions as seen in Order 42 Rule 13 of the Civil Procedure Rules.

24. Notably, the procedure for rejection and/or admission of appeal and giving of directions is very well set out in the Civil Procedure Rules. However, this procedure does not seem to be strictly followed and differs from one court to another. In the Civil Division Milimani Law Courts, the Registrar issues the notice for admission and directions of appeal after the High Court receives the file and lower court proceedings. The appellant does not seem to have any role in fixing the appeal for directions as contemplated under Order 42 Rule 11 of the Civil Procedure Rules and Order 42 Rule 13 (1) of the Civil Procedure Rules. It is important to point out that under Order 42 Rule 13 (4) of the Civil Procedure Rules, the judge shall not allow a matter to proceed for hearing unless the record of Appeal is duly filed.

25. Once directions are given under Order 42 Rule 13 of Civil Procedure Rules and the appellant fails to fix the appeal for hearing, the respondent may fix the same for hearing and/or seek dismissal of the same for want of prosecution under Order 42 Rule 35 (1) of the Civil Procedure Rules or the registrar lists the appeal before a judge for dismissal under Order 42 Rule 35 (2) of Civil Procedure Rules.

26. Order 42 Rule 35 (1) of the Civil Procedure Rules stipulates as follows:-

“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”.

27. Order 42 Rule 35 (2) of the Civil Procedure Rules stipulates as follows:-

“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”

28. The provisions of the law relating to dismissal cannot be read in isolation. The bottom line is that directions must have been given before an appeal can be dismissed for want of prosecution. This is the position that this court took.

29. Indeed, there does not appear to be any penalty where an appellant fails to proceed as per Order 42 Rule 11 and Order 42 Rule 13 of the Civil Procedure Rules, 2010.

30. As there was no indication that directions had been given herein, the Appeal herein could not be dismissed under Order 42 Rule 35 (1) of the Civil Procedure Rules. In any event, there was also no evidence that the Registrar had issued a notice under Order 42 Rule 12 of Civil Procedure Rules. There was also no indication that the lower court file and proceedings had been forwarded to the High Court for the Registrar to proceed as aforesaid.

31. It was therefore the considered opinion of this court that allowing the present application would be shutting out the Appellant from accessing the court and would be contrary to Article 50(1) of the Constitution of Kenya, 2010 that provides that every person has a right to have his dispute determined in a fair hearing. Indeed, the Appellants herein would suffer great prejudice if they were denied an opportunity to fully present their Appeal to be heard on merit.

DISPOSITION

32. For the foregoing reasons, the upshot of this court’s decision was that the Respondent’s Chamber Summons application dated and filed 18th February 2019 was not merited and the same is hereby dismissed. Costs shall be in the cause.

33. To progress this matter further, the Appellantsare hereby directed to file and serve their Record of Appeal within sixty (60) days from date of this Ruling. In the event the proceedings of the lower court and the lower court file will have been placed in the file herein and the Appellant shall have failed to file their Record of Appeal as aforesaid, the Appeal herein will stand as automatically dismissed and the decretal sum deposited in court will be released to the Respondent as has been sought in its present application.

34. Since the Appellants do not have control of the court diary or the typing of proceedings, the Registrar of High Court Civil Division Milimani Law Courts is hereby directed to facilitate the typing of the judgment and proceedings and placing of the lower court file within thirty (30) days from date of this Ruling.

35. Either party will be at liberty to apply.

36. It is so ordered.

DATED and DELIVERED at NAIROBI this 17thday of December 2019

J. KAMAU

JUDGE