[2023] KEHC 24852 (KLR)

Jumbo North (EA) Ltd v Obonyo (Civil Appeal E18 of 2020) [2023] KEHC 24852 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24852 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal E18 of 2020

JRA Wananda, J

November 3, 2023

Between

Jumbo North (EA) Ltd

Appellant

and

Simon Peter O. Obonyo

Respondent

Ruling

1. Before this Court is the Application brought by way of the Chamber Summons dated 13/1/2023 seeking the following Orders:a.That the Honourable Court be pleased to dismiss the appeal herein with costs for want of prosecution.b.That costs of this Application be provided for.

2. The Application is filed through Messrs Mathai Maina & Co. Advocates and is stated to be brought under “Section 1A of the Civil Procedure Act, Order 17 Rule 2(3), Order 42 Rule 13 and Order 42 Rule 35 of the Civil Procedure Rules”. The Grounds of the Application are as set out on the face thereof and the same is supported by the Affidavit sworn by the Respondent, Simon Peter O. Obonyo.

3. In the Affidavit, the Respondent deponed that on 14/2/2020, the Appellant filed a preliminary objection on jurisdiction stating that the then Plaintiff and now the Respondent had filed a suit that contravenes the provisions of Section 16 and 58 of the Work Injury Benefits Act of 2007 in CMCC no 829 of 2017, on 29/10/2022 Hon. R. Odenyo, Magistrate, dismissed the Preliminary Objection, being dissatisfied with the Ruling, the Appellant filed a Memorandum of Appeal on 3/11/2020, since then the Appellant has taken no step to prosecute the appeal, including having it listed for directions as required by Order 42 Rule 13 of the Civil Procedure Rules 2010, because the Appellant’s action are a contravention of Order 43 Rule 13 and more than 2 years have lapsed since then, he is at liberty to apply for dismissal of the appeal for want of prosecution as provided under Order 42 Rule 35(1) of the Civil Procedure Rules, for this reason, he has taken the step to apply for dismissal of the appeal, the Appellant’s actions, or lack of it, has greatly prejudiced the Respondent by prolonging the suit more than necessary, because the Appellant has lost interest in this matter, the Appeal is frivolous and an abuse of the Court process and that it is in the interest of justice and expeditious disposal of suits that this Appeal be dismissed.

Response to the Application 4. The Application is opposed by the Appellant vide the Replying Affidavit filed in Court on 14/2/2023 and sworn by the Respondent’s Advocate, Anne Halwenge Odwa. In the Affidavit, Counsel deponed that the application is incompetent, premature and a non-starter, the Appellant is still keen on prosecuting the Appeal and has indeed been making every effort to prosecute the appeal, ever since the Memorandum of Appeal was filed, she has made numerous visits to the Court’s Registry to inquire on whether proceedings had been typed but to date no communication and/or response from the Court has been received thereon to facilitate the preparation, compiling and filing of a Record of Appeal, the preparation and/or typing of proceedings is the preserve of the Court and the Appellant cannot be made to suffer or be punished if there is any delay in delivering the same to the parties, Order 42 Rule 13 of the Civil Procedure Rules cannot be read in isolation as it can only take effect after the Appeal is admitted/accepted by the Judge and notice of the admission/acceptance relayed to the Appellant as provided under Order 42 Rule 12, to date no notice of admission of the Appeal as contemplated under Order 42 Rule 12 has been served on the Appellant.

5. Counsel further deponed that Order 17 which the Respondent has invoked in seeking the dismissal is irrelevant to the situation at hand, Order 42 Rules 35(1) and (2) only contemplates dismissal of the Appeal where directions have already been given by the Judge on how the appeal is to proceed after admission but the Appellant fails to take action within 3 months of the directions given or where a request is made to the Deputy Registrar to have the Appeal listed for dismissal and this is only after 1 year upon service of the Memorandum of Appeal, the situation is different and distinct in the instant case since no directions have been given to warrant the orders now being sought or any request made to the Deputy Registrar to list the Appeal for dismissal, the Appeal raises weighty legal issues in particular whether the lower Court has jurisdiction to handle the matter, the Appellant ought to be given an opportunity to ventilate the Appeal on merit, the Appellant has always been ready and willing to have the appeal heard expeditiously save that this has been hampered by the fact that proceedings have not been availed for purposes of compiling the Record of Appeal, it will be against the interest of justice to dismiss the appeal before hearing it, the application ought to be dismissed but in lieu thereof, there be an order directing the Eldoret Subordinate Court to avail the typed proceeding and Judgment to facilitate preparation and filing of the Record of Appeal.

Hearing of the Application 6. It was then directed, and agreed, that the Application be canvassed by way of written Submissions. Pursuant thereto, the Respondent’s Counsel filed her Submissions on 15/6/2023 while the Appellant filed on 14/6/2023.

Respondent’s Submissions 7. Counsel for the Respondent submitted that dismissal of an Appeal is provided for under Order 42 Rule 35 of the Civil Procedure Rules, that the Appellant in its Replying Affidavit submitted that the Application is premature as directions had not been given, as a general rule, Appeals cannot be dismissed under Order 42 Rule 35(1) unless directions have been given under Order 42 rule 11, however, the legal position in this respect was well articulated in the cases of China Road & Bridge Corporation v John Kimenye Muteti [2019] eKLR and Abraham Mukhola Asitsa v Silver Style Investment Company Limited [2020] eKLR to the effect that where the Appellant files an Appeal and goes into slumber, the Court can invoke the powers given under Section 1A and 1B of the Civil Procedure Act and also invoke its inherent powers under Section 3A thereof to make such orders as may be necessary for the ends of justice or to prevent abuse of the Court process and further, under the provisions of Article 159(2)(b) of the Constitution, the Court is called upon to do justice without undue delay, this is notwithstanding that directions have not been given. He cited the case of Peter Kipkurui Chemwolo v Richard Chepsergon [2021] eKLR.

8. Counsel further submitted that apart from alleging that directions have not been taken, the Appellant was also stating that proceedings have not been typed and annexed bundles of letters as annexure, it is noteworthy that letters dated 2/11/2020, 7/4/2021 and 16/12/2022 do not have any Court stamp to indicate that they were served upon the Chief Magistrate's Court Registry and the emails were sent after the lapse of 1 year after the Memorandum of Appeal had been filed, therefore there is no indication by the Appellant that it was keen in prosecuting this Appeal, this Appeal has taken more than 2 years and no step has been taken to move the Court, the Respondent who was injured while serving the Appellant moved the Court in the year 2017 and further delay is prejudicial to him more since the Chief Justice has given directions that those cases that had stalled due to lack of proper direction regarding Work Injury Benefits Act (WIBA) cases to proceed, should this Appeal still be pending in Court then the same will be a violation of the Respondent’s right as enshrined under Article 159(2) (b) of the Constitution of Kenya. Counsel concluded by submitting that if this Appeal was a child, that child would be talking by now but this Appeal is still silent and urged the Court to make the Appeal start to talk by dismissing it.

Appellant’s Submissions 9. Counsel for the Appellant submitted that the suit in the lower Court proceeded for hearing and the Respondent’s case was closed, before defence hearing could commence, the Court of Appeal delivered a Judgment on work related matters directing that work injury claims do proceed before the Director, the Judgment prompted the Appellant to file a Preliminary Objection challenging the Court’s jurisdiction to handle the suit, the Objection was dismissed and being aggrieved, the Appellant moved with speed and filed its Memorandum of Appeal, the Appellant also filed for and obtained stay of proceedings pending Appeal.

10. Counsel further submitted that the present Application has been brought prematurely, the law provides two avenues for dismissal of an appeal for want of prosecution, the first is if within 3 months after giving directions under Rule 13 the Appellant shall not have set down the Appeal for hearing, then the Respondent shall be at liberty either to set down the Appeal for hearing or apply for its dismissal, the second limb is if within 1 year after 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 for dismissal, the two scenarios envisaged by law are not obtaining in the instant Application, for want of directions by the Judge or service of the Memorandum of Appeal, no directions whatsoever have been given in line with the provisions of Order 42 Rule 13, the Appeal is not yet ripe for directions for want of provision of the typed proceedings and the Ruling for Appeal purposes, typing of proceeding is purely in the hands of the Court and all the Appellant can do is to keep following up with the Court administratively, directions having not been given, the Appeal is not ripe for the action and that the Application for dismissal is therefore premature, the same cannot be dismissed under Order 42 Rule 35(1).

11. On the second limb, Counsel submitted that the Appeal is not yet ripe for any action as no notice and/or directions have been given on service of the Memorandum of Appeal and which is an administrative function of the Court under Order 42 rule 12, the Appellant cannot be faulted and/or punished on account of the failure on the part of the Court to perform its function. She cited Section 78 B of the Civil Procedure Act and submitted that there has to be a Record of Appeal filed in order for the Judge to peruse it and give directions on service of the Memorandum of Appeal taken. She also cited the cases of Njai Stephen v Christine Khatiala Andika, Civil Appeal no 248 of 2017 and Pinpoint Solutions Limited and another v Lucy Waithegeni Wanderi (as the legal administrator of the estate of James Nyanga Muchangi).

12. Counsel further submitted that the Appellant has always been ready and willing to prosecute the Appeal and that the Appeal raises weighty legal issues and ought to be heard on its merits. She cited the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 Others (2013) eKLR and added that parties have a right to be heard and that dismissing the Appeal is taking the seat of justice away from the Appellant. In conclusion, she cited Article 50(1) of the Constitution on the right to a fair trial.

Analysis & Determination 13. Upon considering the Application and response thereto, I find the issue that arises for determination to be “whether the Appeal ought to be dismissed for want of prosecution”.

14. I now proceed to answer the said Issue.

15. Order 42 Rule 35(1) and (2) of the Civil Procedure Rules provide as follows:(1)“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.(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”

16. It is therefore evident that Order 42 Rule 35 envisages two situations for the dismissal of an Appeal for want of prosecution. The first is where an Appellant, after directions have been given as contemplated under Section 79B of the Civil Procedure Act and Order 42 Rule 11 of the Civil Procedure Rules, fails to cause the matter to be set down for hearing within 3 months. The second scenario is where the Registrar lists the Appeal for dismissal where, 1 year after service of the Memorandum of Appeal, the Appeal has not been set down for hearing.

17. Section 79B of the Civil Procedure Act referred to above 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”.

18. Order 42 Rule 13 of the Civil Procedure Rules then 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).”

19. It is evident from the provisions of Section 79B above that giving of directions is a very important step in the process of preparing an Appeal for trial. A Judge has the noble duty of perusing the Record of Appeal and related material and to verify that the same is properly filed before giving the Appeal the greenlight to proceed to hearing. These are the directions contemplated under Order 42 Rule 11 which provides 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”.

20. If the appeal is not summarily dismissed, then, under Order 42 Rule 12 the Registrar is required to so notify the Appellant who shall then serve the Memorandum of Appeal upon the Respondent(s) within 7 days of receipt of the notice. Under Order 42 Rule 13, after service of the Memorandum of Appeal, upon not less than 21 days’ notice to the parties, the Appellant shall cause the Appeal to be listed before the Judge for directions.

21. Once directions are given under Order 42 Rule 13, if within 3 months thereafter the Appellant fails to fix the Appeal for hearing, then under Order 42 Rule 35(1), the Respondent may fix the same for hearing and/or seek dismissal thereof for want of prosecution or if within 1 year after service of the Memorandum of Appeal the Appeal is not set down for hearing, the Registrar may, under Order 42 Rule 35(2), list the same before a Judge for dismissal.

22. From the foregoing, it is evident that the giving of directions by a Judge has been given a prominent role in the process leading to the setting down of an Appeal for hearing and is in fact, a prerequisite step. On paper therefore, directions ought to have been given before an Appeal can be liable for dismissal for want of prosecution.

23. This apparent rigidity and/or loophole in Order 42 Rule 35(1) and (2) has however been regularly exploited and grossly abused by Appellants, particularly those enjoying orders of stay of execution, to delay Appeals. Being aware that it is the lower Court’s duty to type and supply proceedings and that delay to do so would be blamed on that Court, such “clever” Appellants would, after delivering the initial request for proceedings, deliberately omit to make any further effort to follow-up to ensure that the process of typing is in fact undertaken. Some unscrupulous Appellants would even go further and “cause” the lower Court typing process to be placed on a deliberate “go-slow” mode. Granted, the Courts in Kenya suffer the chronic challenge of gross understaffing in respect to typists, however delays in typing are more often than not, not necessarily a result of understaffing but deliberately caused by “vested interests”.

24. For the said reasons and in a bid to beat such unscrupulous Appellants at their own game, Judges of the High Court, correctly in my view, are now resorting to invoking the inherent powers of the Court by declining to interpret Order 42 Rule 35 in the narrow and literal manner in which it has erstwhile been construed. For instance, L. Njuguna J in John Njagi Karua v Njiru Gatumu [2021] eKLR, held as follows:“15. What is clear from the above therefore is that the directions as required under Order 42 Rule 11 and also under Order 42 Rule 13 of the Civil Procedure Rules 2010 were never made in this file. Under Order 42 Rule 35(1), the respondent in an appeal cannot apply for dismissal of the appeal for want of prosecution unless within three months after the giving of directions under rule 13 the appeal has not been set down for hearing by the appellant.16. It is my considered opinion therefore that the application herein is premature as it was filed before directions were given as is required by the Rules.17. However, this does not mean that this court cannot dismiss an appeal before directions are given. Where there are sufficient reasons, the court can invoke its inherent powers as bestowed on it by the Civil Procedure Act and the Rules and dismiss an appeal for want of prosecution even where directions have not been given……………………………………………18. As such, where the appellant files an appeal and goes into slumber, this court can invoke its inherent powers under Section 3A, to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process and further the provisions of Article 159(2) (b) of the Constitution to do justice without undue delay. This is notwithstanding that directions have not been given.”

25. Similarly, Odunga J in China Road & Bridge Corporation v John Kimenye Muteti [2019] eKLR, held as follows:“19. It is therefore clear that it is upon the appellant to trigger the process of the giving of directions and an appellant who sits on his/her laurels and when confronted with an application to dismiss the suit contends that no directions have been given when he has not moved the court to give the said directions cannot but face censure from the court. To contend that an application for dismissal of an appeal is premature for failure to give directions when the appellant himself has not moved the court to give directions to my mind cannot be taken seriously where the delay is contumelious. Nothing bars the court from dismissing an appeal even where no directions have been given ………...”

26. Further, Onyancha, J in the case of Protein & Fruits Processors Limited & another v Diamond Trust Bank Kenya Limited [2015] eKLR, Civil Appeal 9 of 2007 held as follows;“Three years later the applicant is seeking dismissal of the appeal. It is not disputed that directions have not been given in this appeal, in my view the appeal cannot therefore be dismissed under Rule 35 (1) since the appeal has not be placed before the judge for direction. As it is, the appeal is incomplete and the Appellants have not furnished the court with the record of appeal. The only alternative the applicant is left with is under Rule 35(2) which requires the Deputy Registrar to list the appeal for dismissal by a Judge. In the current application the applicant is seeking an order that the Deputy Registrar be directed to list the appeal for dismissal before a judge in chamber. I have no reasons not to grant the prayer, the appeal hearing has been pending in court for six years and it is only fair if the matter can be finalised. In the circumstances of this matter, I will not order the Deputy Registrar to place the file before a judge for dismissal; instead, I will dismiss the appeal. This court has the inherent discretion to do so under Section 3A, to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process. The court is also enjoined under Article 159(2) b of the Constitution to do justice without any delay.”

27. The question therefore is whether this is a proper case for the Court to invoke its inherent powers and dismiss the Appeal notwithstanding that directions have not been given.

28. In the case of Ivita v Kyumbu [1984] KLR 441 which was followed in Peter Kipkurui Chemwoio v Richard Chepsergon [2021] eKLR, the test to be applied in an application for the dismissal of an action for want of prosecution was stated to include whether the delay is prolonged and inexcusable, and if it is, whether justice can still be done despite the delay and that even if the delay is prolonged, whether the Court is satisfied with the excuse for the delay. Where justice can still be done, the action will not be dismissed but it will be ordered to be set down for hearing at the earliest available time.

29. Coming back to this matter, the trial Court rendered the impugned Ruling on 29/10/2020. The Appellant, being aggrieved by the Ruling, filed its Memorandum of Appeal on 6/11/2020. According to Counsel for the Appellant, vide a letter dated 2/11/2020, they applied for the typed proceedings and the Ruling and subsequently, made follow-up through the letter and email dated 7/4/2021, letter dated 1/7/2022, letter dated 16/12/2022 and email dated 17/12/2022. I however note that out of the 4 letters, only 2 bear the Court stamp.

30. Be that as it may, the Appellant’s Counsel contends that to date there has been no communication and or response from the Court on the request and this is the reason why they have not been able to prepare and file the Record of Appeal. However, the Appellant has not offered any reason why it has not since 17/12/2022 made any further efforts in respect to the request.

31. It is clear to my mind that the Appellant’s Advocates have not been diligent enough in following up the request for proceedings. Writing letters alone is not enough, an Advocate must aggressively, regularly and consistently follow-up on all requests made to the Court by letter. The fact that the Advocate has not informed the Court what nature of verbal response they have been getting from the Court Registry over the delay is sufficient proof that they have not been making any physical follow-up, they simply wrote letters and left it at that. Where delay to supply proceedings is too prolonged, as it in this case, and no communication is being received from the Court regarding such delay, a diligent Advocate would seek audience with even the Chief Magistrate or even seek a Mention date before him to discuss the delay and procure a way forward.

32. I would have invoked this Court’s inherent powers and dismissed this Appeal for want of prosecution save that the Appellant’s Advocates have at least provided some evidence, albeit not too convincing, that they have made some effort, though feeble, in following-up on their request to be supplied with the typed proceedings. In the interest of justice therefore, I will not dismiss the Appeal but shall, instead, give strict timelines within which the Appellant must cause the Appeal to be made ready for prosecution.

Final orders 33. In light of the foregoing, I issue the following orders:i.The Application dated 13/01/2023 filed by the Respondent is hereby dismissed with no order on costs.ii.The Appellant shall do the following:a.File the Record of Appeal within forty-five (45) days from the date hereof.b.Within fifteen (15) days from the date of filing of the Record of Appeal, cause the Appeal to be listed for directions.iii.No-compliance with either of the above Orders shall render the Appeal liable for dismissal.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 3RD DAY OF NOVEMBER 2023. ....................WANANDA J. R. ANUROJUDGE