[2022] KEHC 1483 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

MISC. CIVIL APPLICATION NO. 72 OF 2020

KENNEDY OCHIENG MBANI........................................ APPLICANT/RESPONDENT

-VERSUS-

JACOB OGUTTU OGALLO..........................................…RESPONDENT/APPLICANT

RULING

The application dated 10th May 2021 has asked this Court to dismiss this appeal for want of prosecution.

1. The Applicant told this Court that the Respondent had neither filed nor served the Memorandum of Appeal.

2. Secondly, the Applicant asserted that the Respondent had failed to meet the conditions which the Court had imposed as a precondition for the extension of the time for lodging the appeal.

3. On 23rd April 2020 the Hon. Lady Justice T. W. Cherere delivered her Ruling on the application dated 28th February 2020. Through that application, KENNEDY OCHIENG MBANIsought leave to appeal out of time. He also sought the stay of execution of the Judgment delivered on 25th July 2019.

4. In her decision, Cherere J. noted that whilst an appeal to the High Court ought to be filed within 30 days from the date of the decree or the order appealed against, the Applicant had come to Court about 7 months later, to seek an extension of time.

5. The learned Judge also noted that the Applicant did not make any effort to explain the delay in filing his intended appeal.

6. Nonetheless, the Court granted a stay of execution, on condition that;

“(i) ½ of the total decretal sum is paid tothe Respondent within 14 days fromtoday’s date.

(ii) The balance of the decretal sum andcosts and interest be deposited intoan interest earning account in thenames of the advocates of both partieswithin 14 days from today’s date.

b. In default of Order (1) and (2) above,the stay order shall lapse.

c. Costs of this application shall be borneby the Applicant.”

7. As the Ruling was delivered on 23rd April 2020, the Respondent herein should have complied with the conditions by the end of the first week of May 2020.

8. However, the Respondent concedes that he did not meet the terms of the Order dated 23rd April 2020.

9. After the lapse of the time when he was supposed to comply, the Respondent filed an application dated 10th June 2020. Through that application, the Respondent herein sought 2 days to enable him comply with the conditions.

10. On 18th June 2020 the parties consented to the extension of 2 days, to enable them open the joint account.

11. The Applicant was uncertain as to whether or not the joint account was opened within the 2 days. However, the Respondent insisted that he had deposited the money which was required to be deposited in the said joint account.

12. Does the alleged failure to deposit the funds become a hindrance to the appeal?

13. In my considered opinion, the answer is a resounding, No.

14. If the Appellant had failed to comply with any of the terms, it is the order for stay of execution which would lapse: That would enable the Respondent to take out execution proceedings.

15. However, whether or not execution was carried out, the Appellant would still be entitled to canvass his appeal.

16. The Respondent had asserted that the appeal had not yet been filed. If that were the position, there would be no need for the Court to dismiss a non-existent appeal.

17. Secondly, as the Appellant was awaiting the typed proceedings from the lower court, it would be premature to condemn him for the failure to prosecute the appeal, when the record of appeal had not yet been compiled.

18. There is no merit in the application dated 10th May 2021; and it is therefore dismissed. Costs of the application are awarded to the Appellant, who is the Respondent thereto.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 9TH DAY OF MARCH 2022

FRED A. OCHIENG

JUDGE