[2022] KEHC 14641 (KLR)

Karumbi & another v Matu (Civil Appeal 540 of 2014) [2022] KEHC 14641 (KLR) (Civ) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14641 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 540 of 2014

JN Mulwa, J

October 6, 2022

Between

Peter Waweru Karumbi

1st Appellant

Gakuua Richard

2nd Appellant

and

Peter Gitia Matu

Applicant

Ruling

1. Before the court is an application dated 21/6/2021 brought by Peter Gitia Matu the Respondent in the appeal. It is premised on provisions of Order 42 Rule 13 and 35(1) and (3) of the Civil Procedure Rules (CPR) as well as Section 1A, 1B and 3A of the Civil Procedure Act.

2. The Applicant seeks an order to dismiss the appeal filed on the 1/12/2017 for want of prosecution as well as vacation of the stay of execution orders of the trial court’s decree. The applicant swore the Supporting Affidavit on the 21/6/2021.

3. In opposing the application, a Replying Affidavit sworn by one Irene Kabuteh, advocate for the Appellant on the 23/7/2021. Both parties also filed their submissions. The court has carefully considered the parties pleadings affidavits for and in opposition and submissions.

4. As at date of filing the instant application, the appellants had not taken any step to prosecute the appeal for 6 ½ years, despite filing the Record of Appeal on the 22/5/2017, and by leave of court to file a Supplementary Record of Appeal on the 30/7/2019. The said Supplementary Record of Appeal is yet to be filed.

5. The failure to progress the appeal is stated in the Replying Affidavit alluded to above. It is argued that despite requesting for a certified copy of the Decree, no response has been received to enable the Appellants to file the supplementary Record of Appeal annexing several letters written to the Executive Officer of the trial Court – Kiambu CMCC Court, and therefore the delay is due to the unavailability of the decree by the Executive Officer of the trial court.

6. The said letters are dated 3/11/2016, 23/8/2017, 5/7/2018, October 19, 2019, 1/10/2020 and 8/1/2021. The above shows follow ups by one letter every year of the 6 ½ years. The court also notes that part of the decretal sum being Kshs. 150,000/= was paid to the Applicant and the balance deposited in an interest earning account in the sum of Kshs. 411,475/= as a conditional stay of execution pending hearing and determination of the appeal.

7. It is not in dispute that this is the second time that the Respondent has sought to have the appeal dismissed for want of prosecution upon which the court, by its orders dated 30/9/2019 sustained the appeal on condition that a Supplementary Record of Appeal be filed to include the Decree within 30 days, i.e on or before the October 30, 2019.

8. Even when the Respondent fixed the appeal for directions on the 1/12/2020, no decree had been filed. The court then directed that the Supplementary Record of appeal be filed within 14 days, and a date taken for compliance on the 18/2/2021, which time the Appellant had not complied with the court orders.

9. It is clear to me that the Appellants have failed and continue to fail to comply with court orders; and in the process have prejudiced the Applicant’s rights to enjoyment of his judgment fruits.

10. The Court of Appeal in the case Shimmers Plaza Ltd vs National Bank of Kenya Limitedrendered that;“… court orders must be obeyed. Parties against whom such orders are made cannot be allowed to trash them with impunity. Obedience of court orders is not optional. Rather, it is mandatory and a person does not choose whether to obey a court order or not…”

11. In Kenya Human Rights Commission vs AG & another [2018] eKLR, the court quoting Canadian Metal Co. Ltd vs Canadian Broadcasting Corp (No. 2) (1075) 48 D. LR (30) stated;“… to allow court orders to be disobeyed would be to tread the road toward anarchy. If orders of the court can be treated with disrespect, the whole administration of justice is brought into scorn… the court is left helpless and its decisions would mean nothing. This ultimately erodes public confidence in the courts; endangers the rule of law, administration of justice and more importantly, development of society… The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect”

12. I have considered the Appellant’s reasons for the failure to obey the court orders and or progress the appeal. I am not satisfied with the explanations. I have stated earlier that the Appellants have done nothing more than writing one letter each year, to the Executive Officer to furnish them with the certified copy of the decree. No other mode of follow up has been exhibited. Extra effort is necessary to achieve what an Applicant or litigant wishes done. The six, almost seven years delay cannot be justified. There is laxity and lack of interest in the appeal by the Appellants.

13. I agree with the holding of the court in Abraham Mukhola Asitsa vs Silver Style Investment Company Ltd [2020] e KLR that“… an appeal is not filed for the sake of it. It should not be left parked at the appeals registry for times on end, without any action being taken… a party cannot hide or argue that some directions had not been taken then the appeal cannot be dismissed…”

14. In the above case, the court proceeded to dismiss the appeal with costs upon a delay of about three years. I am minded that Order 42 Rule 2 grants an appellant leave to file a decree but on conditions that sets the time within which the same ought to have been filed. That time as allowed by the court lapsed, and no extension of the set time was sought and no reasons have been advanced by the Appellant for the failure.

15. Order 42 rule (2) CPR provides that if within one 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.

16. I do not agree at all with the Appellants that it is only the Registrar of the court who ought to set down the appeal for dismissal. Any of the parties are obligated to take that step, and cannot be stated that by taking the action by the applicant was usurping the duties of the Deputy Registrar. To hold so would in my view be an academic exercise. An appeal or case, essentially belongs to the Appellant/Plaitniff, who is mandated to progress the appeal once filed to final conclusion.

17. Having been granted time by the court to progress the appeal, not once, but many times, the appellants cannot be heard to complain and submit that by dint of Section 79B Civil Procedure Act, no action or step can be undertaken to dismiss the appeal; that being very naive and a misunderstanding of the application of the law.

18. The test to be applied in application for dismissal of appeal (or suit) 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 – Eastern Province Kenya Ltd vs Rongai Workshop and Transporters Ltd and another [2014] e KLR; and Ivita vs Kyumbu [1984] KLR.

19. Looking at the instant appeal, I am convinced that the delay is overly prolonged, and unexplained sufficiently for reasons stated above. There is no doubt that the prolonged delay has greatly prejudiced the applicant. It is not enough that the decretal sum is secured in a bank account.

20. The Applicant has been locked out from the use of the said decretal sum, while the appellants continue sleeping, and it appears, not in a hurry to push the appeal forward. Indeed, a perusal of the court record shows no action at all since filing of the replying affidavit to the instant application in July 2021.

21. The interest of justice is two way; that of the Applicant and of the Respondent. There are varying factors that include the nature of the case, importance of the claim and the rights of the parties. Article 50(1) of the Constitution of Kenya provides that every person has a right to have any dispute resolved by application of the law decided in a fair hearing by a court or tribunal, and therefore should not be shut out from being heard. On the other hand, the respondent should not be prejudiced unfairly by indolence of the appellant. It is a balancing act that ought to take care of both parties interests.

22. Section 1A and 1B of the Civil Procedure Act mandate courts and litigants to assist each other to facilitate the just, expeditious proportionate and affordable resolution of civil disputes; as well as efficient disposal of disputes.

23. The court has inherent power to make such orders as may be necessary for ends of justice to be met, and to prevent abuse of the court process – Section 3A of the Civil Procedure Act. To that end, the Court of Appeal in Hunker Trading Company Ltd Vs Elf Oil Kenya Limited [2010] e KLR held that“… the applicant cannot be allowed to invoke the “02 principle” and at the same time abuse it at will …”This is the oxygen principle.

24. Thus the overriding objective of the Act and the rules thereunder is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes and the court is thus not harm strung and where circumstances so demand can invoke its jurisdiction under Section 3A.

25. Upon the above principles and the circumstances of the appeal hereto, the court finds as follows:1. That the application dated 21/6/2021 is merited and the appeal is dismissed with costs to the Respondent.2. That the stay of execution orders issued on the 23/7/2015 are hereby vacated, with the result that the money held in the joint account in the parties advocates names shall be released to the Respondent’s advocates for onward transmission to the Respondent3. That there shall be no orders as to costs.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 6TH DAY OF OCTOBER 2022. J.N. MULWAJUDGE