[2018] KEHC 8446 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT VOI

CIVIL APPEAL NO 23 OF 2015

KARANJA ROBERT……………….…..………….………….…………..1ST APPELLANT

GLORIA BUS COMPANY………………………………………………..2ND APPELLANT

VERSUS

DAVID KWIA MUKULA….…..…………………………………………...RESPONDENT

(Being an appeal from the Judgment of the Honourable Resident Magistrate E. M. Kadima in Voi Civil Case No. SRMCC NO 36 OF 2014- VOI delivered on 23rd September 2015)

BETWEEN

DAVID KWIA MUKULA…..…..…….PLAINTIFF

VERSUS

KARANJA ROBERT…………..1ST DEFENDANT

GLORIA BUS COMPANY…….2ND DEFENDANT

RULING

INTRODUCTION

1. The Respondent’s Chamber Summonsapplication dated 27th July 2017 and filed on 19th September 2017 was brought pursuant to the provisions of Section 1A of the Civil Procedure Act, Order 42 Rule 35 of the Civil Procedure Rules and all other enabling provisions of the law. It sought the following prayers:-

a. THAT the appeal herein be dismissed for want of prosecution

b. THAT in the alternative, the Appeal herein be dismissed for being frivolous, vexatious and an abuse of the court process.

c. THAT the Appellantsdo bear the costs of this application and the appeal.

THE RESPONDENT’S CASE

2. The Respondent’s application was supported by his Affidavit that he swore on 27th July 2017. His Written Submissions were dated 10th November 2017 and filed on 16th November 2017.

3. His application was premised on the grounds that since the Appellants filed the Appeal herein on 16th October 2015, they had not taken any action to prosecute the same. He also contended that the delay in prosecuting the Appeal herein was inordinate and that it did not only offend the principles of natural justice, but that it was also prejudicial to him because it continued to deny him the fruits of his judgment.

4. He therefore urged this court to dismiss the Appeal herein with costs to him.

THE APPELLANTS’ CASE

5. In opposition to the said application, on 4th October 2017,Daniel Muthee, an advocate in the firm of M/S Kairu & McCourt Advocates swore a Replying Affidavit on behalf of the Appellants herein. Their Written Submissions dated 6th November 2017 were filed on 20th November 2017.

6. Their assertion was that they had taken reasonable steps to prosecute their Appeal. They referred this court to their letter dated 20th November 2015 and filed in court on 18th January 2016 addressed to the Executive Officer in which they had requested for certified copies of the typed proceedings to enable them prepare a Record of Appeal.

7. They contended that despite numerous follow ups with the Executive Officer, they were informed that the proceedings were not ready as late as 16th October 2017. It was their averment that as at the time of the filing of the Respondent’s application, they had not received the said proceedings and consequently, they had been unable to prepare a Record of Appeal with a view to triggering the chain of events envisioned under Order 42 of the Civil Procedure Rules, 2010.

8. It was their submission that they submitted that they were still keen their Appeal and requested the court to exercise its discretion in their favour and allow them more time to file their Record of Appeal so that the Appeal herein could be heard on merit.

LEGAL ANALYSIS

9. After perusing the Appellants’and the Respondent’s Written Submissions, this court was of the view that the issue that had been placed before it for determination waswhether or not the Respondent had established a case for the dismissal of the Appeal herein dismissed for want of prosecution and/or for being frivolous, vexatious and an abuse of the court process.

10. This court noted that neither the Respondent nor the Appellants addressed the Respondent’s assertion that the Appeal herein was frivolous, vexatious and an abuse of the court process.This court therefore found and held that it was therefore not necessary to consider the said assertion as a ground to dismiss the Appellant’s Appeal herein. Suffice it to state that an application has proven to be frivolous, vexatious and an abuse of the court process, any party has a right to approach any court for relief.

11. Turning to the substantive issue of delay in prosecuting the Appeal herein, the Respondent pointed out that the Appellants were obligated by the provisions of Section 79B of the Civil Procedure Act Cap 21 (Laws of Kenya) to cause the Appeal to be listed before a judge for directions within thirty (30) days of lodging their Memorandum of Appeal. He contended that the Appellants had been indolent in prosecuting the Appeal as they had failed to take any steps to have the Appeal listed for directions nearly two (2) years after filing their Memorandum of Appeal.

12. He pointed out that the Appellants’ assertions that they wrote to the Executive Officer requesting for a copy of typed proceedings immediately after filing their Memorandum of Appeal was an afterthought because their letter was dated 20th November 2015 but filed on 18th January 2016, which was nearly ninety (90) days later, exceeding the thirty (30) days requirement within which to request for proceedings.

13. He relied on the case of Haron E Ogechi vs British American Insurance Company Limited [2012] e KLR where Onyancha J (as he then was) held as follows:-

“It is however, clear to this court that the Registrar cannot give notice of directions to the parties of an appeal and cannot himself fix an appeal for directions before a Judge unless and until the Appellant has caused it by first complying with rule 11 and 13 thereof. Appellant’s compliance to those rules is the gate-opening for admission of appeal and for the taking of directions. It is to be observed, therefore, that it will be Appellant who shall really causethe appeal to be listed for giving directions before a judge by a) serving the Memorandum of Appeal and b) Filing and serving the Record of Appeal.

14. He also relied on the case of Elem Investment Limited vs Makora Otwoma [2015] e KLR where Aburili J rendered herself as follows:-

“Indeed where the Appellant files an appeal and goes to sleep, this court can invoke its inherent jurisdiction under Section 3A and the Overriding objectives under sections 1A and 1B of the Civil Procedure Act as well as Article 159 (2)(b) of the Constitution, which provisions enjoin this court to do all that it can to prevent the abuse of its processes; to expedite the delivery of justice for the parties justly, fairly, proportionately and at a cost that is affordable to all. The Constitution abhors delayed justice and commands that “justice shall not be delayed”. Under Section 1A and 1B of the CPA parties and their advocates are enjoined to assist the court in achieving the Overriding objections of the Act.

15. On their part, the Appellants submitted that the Respondent’s application as drafted and filed was fatally defective in form, law and substance. They pointed out that the application was brought under Order 42 Rule 35 of the Civil Procedure Rules, 2010 and Section 1A of the Civil Procedure Act, Cap 21 Laws of Kenya.

16. They contended that Order 42 Rule 35 was the principal provision on the procedure and mode of dismissing Appeals and that it provided two (2) avenues for dismissing appeals for want of prosecution.

17. The first avenue was under Order 42 Rule 35 (1) of the Civil Procedure Rules, 2010 where the following conditions had to be met:-

a. Directions must have been issued under Order 42 Rule 13;

b. Three (3) months must have lapsed after the issuing of directions;

c. The appeal has been set down for hearing within the said three (3) months after issuing of directions.

18. They were emphatic that directions had not been issued by the Court under Section 79 B of the Civil Procedure Act as such the appeal has not yet been admitted and consequently, a dismissal under Order 45 Rule 35(1) of the Civil Procedure Rules, 2010 was not applicable herein.

19. In this regard, they relied on the case of Jurgen Paul Flach vs Jane Akoth Flach[2014]eKLRwhere H.A. Omondi J cited with approval the case of Kirinyaga General Machinery vs Hezekiel Mureithi Ireri HCCC No 98 of 2008 where M. Kasango J held as follows:-

“It is clearly seen from that rule that before the respondent can move the court either to set the appeal down for hearing or to apply for dismissal for want of prosecution, directions ought to have been given as provided under rule 8B. Directions have never been given in this matter. The directions having not being given the orders sought by the respondent cannot be entertained.

20. They pointed out that the second avenue for dismissal of an Appeal was under Order 42 Rule 35 (2) whereby the Registrar was required to list the appeal before a judge for dismissal, which they contend has not happened in this particular case.

21. It was also their further averment that the delay, if any, was not so inordinate as to have warranted the Appeal herein to be struck out entirely and that in any event, any such delay could be compensated by way of costs.

22. They placed reliance on the cases of UAP Insurance Company Limited vs Washington Gatura Kimani [2016] eKLR,Suresh Ruginath Raniga & Another vs Sagar Mohan S.M. Ram [2012] eKLR and Elem Investment Limited vs John Mokora Otwoma [2015] eKLRwhere the court upheld the findings in the Kirinyaga General Machinery case vs Hezekiel Mureithi Ireri(Supra) to demonstrate that the Respondent’s appeal was premature and misconceived.

23. A perusal of the court record showed that the Appellants filed their Memorandum of Appeal on 23rdOctober 2015. They requested for typed and certified copies of proceedings to enable them prepare a Record of Appeal in their letter dated 20th November 2015. The same was filed in court on 18th January 2016.

24. Whereas the Respondent was correct in stating that the Appellants were under an obligation to follow up the proceedings with the Executive Officer, this court noted the proceedings became ready on 20th November 2017 when they were certified as true copies of the original.Clearly, the delay was on the part of the court and not on the Appellant. It would be punitive and harsh to punish the Appellants for the delays of the lower court.

25. Notably, the Appeal herein was yet to be admitted for hearing as is required under Section 79 of the Civil Procedure Act. The said Section 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.”

26. Directions under Order 42 Rule 35(1) of the Civil Procedure Rules, 2010 had not been given by the court when the Respondent would have had a right to seek for the dismissal of the Appeal herein within three (3) moths of directions having been given by the court.

27. In addition, the provision of Order 42 Rule 35(2) of the Civil Procedure Rules 2010 had not been applicable herein. The same provides 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. Indeed, allowing the present application would be shutting out the Appellants from accessing the court when the delay was clearly on the part of the lower court in forwarding certified copies of proceedings to this court. The fact that the Respondent premised his application on a provision of the law that the Appellants contended was wrong did not render his application fatally defective in form, law and substance.

29. Notably, Order 2 Rule 14 of the Civil Procedure Rules, 2010 stipulates as follows:-

“No technical objection may be raised to any pleading on the ground of any want of form.”

30. Further, Order 51Rule 10 of the Civil Procedure Rules, 2010 states that:-

1. Every order, rule or other statutory provision under or by virtue of which any application is made must ordinarily be stated, but no objection shall be made and no application shall be refused merely by reason of a failure to comply with this rule.

2. No application shall be defeated on a technicality or for want of form that does not affect the substance of the application.

31. Accordingly, having considered the Affidavit evidence, the Written Submissions and the case law that was relied upon by the parties herein, this court agreed with the Appellants’ Written Submissions that as the Appeal herein had not been admitted for hearing and directions had not been given under Order 42 Rule 35 (1) of the Civil Procedure Rules, the Respondent’s application was premature.

DISPOSITION

32. For the reasons foregoing, the upshot of this court’s Ruling was that the Respondent’s Notice of Motion application that was dated 27th July 2017 and filed on 19th September 2017 was not merited and the same is hereby dismissed with no order as to costs.

33. To avoid any further delays in this matter, the Appellants are hereby ordered to file and serve their Record of Appeal within fourteen (14) days from the date of this Ruling.

34. This matter will be listed for Directions on disposal of the Appeal herein on 6th March 2018. The Appellants are hereby forewarned that save for a plausible reason being profferedon why they shall have failed to comply with Paragraph 33 herein, this court will have no option but to dismiss the Appeal herein for want of prosecution in accordance with the law.

35. It is so ordered.

DATED and DELIVERED at VOI this 20th day of February2018

J. KAMAU

JUDGE