[2022] KEHC 11845 (KLR)

Kajiado County & 2 others v Shisia (Suing as the Mother and Personal Representative of the Estate of Brighton Wambuye) (Civil Appeal 151 of 2018) [2022] KEHC 11845 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11845 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 151 of 2018

WM Musyoka, J

May 13, 2022

Between

Kajiado County

1st Appellant

Razak Hussein Mambo

2nd Appellant

County Government of Kakamega

3rd Appellant

and

Lydia Mukungu Shisia (Suing as the Mother and Personal Representative of the Estate Of Brighton Wambuye.

Respondent

Suing as the Mother and Personal Representative of the Estate of Brighton Wambuye

(Arising from the judgment and decree Hon. Fredrick Nyakundi, Resident Magistrate, of 22nd October 2018 in Mumias SRMCCC No. 105 of 2017)

Ruling

1. I am tasked with determining an application, dated April 8, 2021, which is seeking to have this appeal dismissed for want of prosecution. The law around issues relating to prosecution of suits, and their dismissal, in cases where their prosecution is wanting, include the Constitution, the Civil Procedure Act, Cap 21, Laws of Kenya, and the Civil Procedure Rules.

2. The most relevant provision of the Constitution of Kenya is Article 50(1) provides that:“(1)Every person has the right to have any disputes that can be resolved by the application of the law decided in a fair and public hearing before a court or if appropriate another independent and impartial tribunal or body.(2)(a)...(b)...(c)...(e)to have the trial begin and concluded without unreasonable delay.”

3. The Civil Procedure Act has section 1B , which carries what is popularly known as the overriding objective or oxygen principle, which states:“Duty of Court(1)For the purpose of furthering the overriding objective specified in section 1A, the court shall handle all matters presented before it for the purpose of attaining the following aims—(a)the just determination of the proceedings;(b)the efficient disposal of the business of the court;(c)the efficient use of the available judicial and administrative resources;(d)the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties; and(e)the use of suitable technology.”

4. Order 42 rule 35 of the Civil Procedure Rules, 2010, provides for dismissal of appeals for want of prosecution, it states:“Dismissal for want of prosecution [Order 42, rule 35. ](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.”

5. The principles that ought to be applied, when considering an application for dismissal of appeal, were discussed in Ivita v Kyumbu [1984] KLR 441 (Chesoni J), where it was said as follows:“The test to be applied in application for dismissal for want of prosecution is whether the delay is prolonged and inexcusable, and if it is whether justice can still be done despite the delay.Thus, even 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 the discretion of the court.”

6. Case law on dismissal of an appeal for want of prosecution under 42 rule 35(1) is divided. On one end of the spectrum, the position is that dismissal can only be contemplated where directions have been given under 42 rule 35(1); on the other, it is stated that an appeal would still be available for dismissal where directions have not been taken, if the appellant has failed to take action on his appeal.

7. In John Njagi Karua v Njiru Gatumu [2021] eKLR(Njuguna J), it was said:“15. What is clear … is that the directions as required under Order 42 rule 11 and also under Order 42 rule 13 of the Civil Procedure Rules2010 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.”

8. In Malde Kanjilal & another v Dorcas Omito Wekesa & another [2020] eKLR (Riechi J), the court opined:“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. 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. This court is of view that an appeal cannot be dismissed before directions had been given. As there was no indication that directions had been given herein, the Appeal herein cannot 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.”

9. In China Road & Bridge Corporation v John Kimenye Muteti [2019] eKLR (Odunga J) said:“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…”

10. The court, in John Njagi Karua v Njiru Gatumu [2021] eKLR (Njuguna J), was open to both positions, for it also observed:“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.”

11. I am persuaded by the position taken in China Road & Bridge Corporation v John Kimenye Muteti[2019] eKLR (Odunga J). A suit or appeal is filed in court for the sole purpose of being heard. Once lodged, steps must be taken, as soon as practicable, to set in motion the process of its eventual hearing and disposal. It should not be left to hover over the heads of the other parties. The court is not a parking lot for suits and appeals filed by persons who have no intention of prosecuting them. It is to be presumed that a party who files an appeal or suit and takes no step to prosecute it for two or more years has no interest in prosecuting it, and the same ought to be dismissed.

12. In the instant case, the memorandum of appeal was lodged herein on November 19, 2018. The original trial records were received at the registry of the appellate court on December 18, 2019. The appellants filed record of appeal on June 18, 2020. After that no step was taken towards the prosecution of the appeal by the appellants, before the April 9, 2021, ten months later, when the motion for dismissal was filed herein. The suit belongs to the parties and not the court. Parties should not wait for prompting by the court to take action in their cases. Once, the record of appeal was lodged at the registry, the appellants should have moved with dispatch to get the matter fixed for directions, noting that the memorandum of appeal had been filed in November 2018, nineteen months prior. There is clear dilatoriness on the part of the appellants. There is no zeal to prosecute the appeal herein.

13. I am persuaded that there is a case for dismissal of the appeal herein from want of prosecution, and I accordingly dismiss the same as prayed. The respondent shall have the costs.

DELIVERED DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 13THDAY OF MAY 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Peter K. Karanja, Advocate for the appellants.Mr. Bwo’Onchiri, instructed by Omundi Bwo’Onchiri & Company, Advocates for the respondent.