https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11629

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E626 OF 2021** **RULING** **NOOR KIJIBA………………………………………..……..1ST APPELLANT** **SAMUEL MWANGI……………………………...………..2ND APPELLANT** **-VERSUS-** **JONAH OKEYO OKELLO…………………………………..RESPONDENT** **RULING** **INTRODUCTION** 1. Before this Court is the Respondent's Notice of Motion dated **29th May 2024**, expressed to be brought under the provisions of **Order 17 Rule 2(3), Order 42 Rule 35(2), Order 51 Rule 3 of the Civil Procedure Rules, 2010**, and all other enabling provisions of the law. 2. Through the said application, the Respondent/Applicant seeks the following substantive orders: 3. ***That the Appellant's appeal be dismissed for want of prosecution.*** 4. ***That upon dismissal of the appeal, the lower court file be returned to the trial court to facilitate execution and any consequential proceedings arising from the judgment.*** 5. ***That the costs of the application be borne by the Appellant.*** 6. The application is premised on the grounds appearing on its face and is supported by the affidavit of learned counsel sworn on **29th May 2024**. 7. The Applicant depones that judgment in **Milimani CMCC No. 6712 of 2016** was delivered on **15th August 2019** in favour of the Respondent. Being dissatisfied with that judgment, the Appellant lodged a Memorandum of Appeal dated **27th September 2021**, thereby instituting the present appeal. 8. The Applicant contends that although the Appellant filed a Record of Appeal, it thereafter failed to take any meaningful steps towards the prosecution of the appeal. In particular, the Applicant avers that the Appellant failed to attend court when the appeal came up for hearing and neglected to file written submissions despite being afforded an opportunity to do so. According to the Applicant, the Appellant's conduct demonstrates a lack of interest in prosecuting the appeal and has unnecessarily delayed its determination. 9. It is the Applicant's case that the Appellant's failure to prosecute the appeal is deliberate, inordinate and wholly inexcusable. The Applicant contends that by failing to attend court and prosecute the appeal after filing the Record of Appeal, the Appellant has occasioned undue delay and continued to deny the Respondent the fruits of the judgment lawfully obtained in the subordinate court. The Applicant therefore urges the Court to find that the appeal has effectively been abandoned and that its continued pendency amounts to an abuse of the court process. 10. The Applicant further maintains that litigation must come to an end and that a successful litigant ought not to be kept away indefinitely from enjoying the fruits of his judgment merely because an appeal has been lodged without any intention of prosecuting it. 11. The Respondent filed written submissions reiterating the contents of the Motion and the supporting affidavit. Counsel submitted that the Appellant has failed to prosecute the appeal for well over one year and has not offered any explanation for the prolonged inactivity. It was therefore urged that the appeal be dismissed under **Order 42 Rule 35** of the Civil Procedure Rules. 12. Despite being afforded an opportunity to respond to the application, the Appellant neither filed a replying affidavit nor grounds of opposition. Equally, no written submissions were filed in opposition to the Motion. Consequently, the application remains substantially uncontroverted. 13. Nevertheless, the mere fact that an application is unopposed does not relieve the Court of its obligation to satisfy itself that the Applicant has established a proper legal basis for the orders sought. As was observed by the Court of Appeal in ***Mbogo and Another v. Shah* [1968] EA93**, judicial discretion must be exercised judiciously and upon sound legal principles. Similarly, the Supreme Court has consistently emphasized that courts must determine disputes on the basis of the applicable law and evidence placed before them, irrespective of whether a matter is contested. 14. The power to dismiss an appeal for want of prosecution is a discretionary one. While that discretion serves the important objective of preventing abuse of the court process and ensuring expeditious disposal of litigation as envisaged under **Article 159(2)(b) of the Constitution**, it must equally be exercised cautiously because its effect is to summarily terminate a litigant's right of appeal. The Court must therefore carefully balance the Appellant's constitutional right to be heard against the Respondent's equally important right to enjoy the fruits of a judgment without undue delay. 15. Having considered the Motion, the supporting affidavit, the submissions filed by the Respondent and the applicable law, the singular issue falling for determination is: **Whether the Respondent has established sufficient grounds to warrant the dismissal of the appeal for want of prosecution under Order 42 Rule 35 of the Civil Procedure Rules.** **ANALYSIS OF THE LAW AND APPLICATION TO THE FACTS** 1. The Court has carefully considered the Notice of Motion, the affidavit in support thereof, the written submissions filed by the Respondent, the record of appeal and the applicable law. The jurisdiction to dismiss an appeal for want of prosecution is derived principally from **Order 42 Rule 35 of the Civil Procedure Rules, 2010**, which provides: **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****.* ***Rule 35(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.*** 1. The foregoing provisions underscore that an appellant bears the primary responsibility of prosecuting an appeal with diligence and expedition. The right of appeal, though fundamental, does not confer upon a litigant the liberty to institute appellate proceedings and thereafter leave them pending indefinitely to the prejudice of the successful litigant. 2. The Court of Appeal has consistently held that litigation must be conducted with reasonable dispatch and that parties who invoke the appellate jurisdiction of the Court must demonstrate diligence in moving their matters to conclusion. In ***Ivita v Kyumbu* [1975] KEHC 4(KLR)**, **Chesoni J**. articulated the enduring principles governing dismissal for want of prosecution by holding that the court must consider whether the delay is prolonged and inexcusable and, if so, whether justice can nevertheless be done despite such delay. Although the decision concerned dismissal of a suit, the principles have repeatedly been applied by superior courts in determining applications for dismissal of appeals. 3. The Court of Appeal reaffirmed these principles in ***Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Another*** **[2014] KEHC 7255**, where it was observed that justice is a two-way street. While courts lean towards sustaining proceedings where possible, they must equally safeguard the interests of the successful party who should not be subjected to endless uncertainty through unexplained delay. 4. Equally instructive is the decision of the Court of Appeal in ***Agip (Kenya) Limited v Highlands Tyres Limited* ([2001] KLR 630 [2001] KEHC 843)**, where the Court emphasized that the purpose of procedural rules is to facilitate the efficient administration of justice and that prolonged inactivity by a litigant may justify the dismissal of proceedings where no satisfactory explanation is forthcoming. 5. The constitutional imperative under **Article 159(2)(b)** that justice shall not be delayed is echoed by **Sections 1A and 1B of the Civil Procedure Act**, which impose upon both the Court and litigants the duty to facilitate the just, expeditious, proportionate and affordable resolution of disputes. Those provisions introduced the overriding objective of civil litigation, requiring parties to actively assist the Court in achieving timely disposal of proceedings. 6. The Supreme Court has similarly stressed that courts must enforce procedural discipline while remaining guided by the demands of substantive justice. In ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others* [2014] KESC 12 (KLR)**, the Court observed that procedural rules are not mere technicalities to be ignored at the whim of litigants, but are handmaidens of justice whose observance ensures orderly and efficient administration of justice. A party seeking the Court's discretionary intervention must demonstrate diligence and good faith. 7. Turning to the present case, it is not disputed that judgment in the subordinate court was delivered on **15th August 2019**. The Appellant lodged the Memorandum of Appeal on **27th September 2021**, thereby invoking this Court's appellate jurisdiction. However, from the material placed before the Court, little, if anything, has been done to progress the appeal towards hearing. 8. The Respondent has deponed that the Appellant has failed to prosecute the appeal for a period exceeding one year. That assertion has not been challenged. No replying affidavit has been filed, no grounds of opposition have been lodged and no written submissions have been tendered. More significantly, the Appellant has not offered any explanation whatsoever for the prolonged inactivity. 9. While the absence of a response does not automatically entitle the Applicant to the orders sought, it leaves the factual assertions regarding the Appellant's inaction substantially uncontroverted. The Court is therefore entitled to evaluate the application on the basis of the material placed before it. 10. This Court has also perused the record and is unable to discern any meaningful steps taken by the Appellant towards preparing the appeal for hearing. The prolonged inactivity demonstrates a lack of interest in prosecuting the appeal. An appeal cannot remain pending indefinitely merely because it has been filed. Once the appellate jurisdiction of the Court is invoked, it is incumbent upon the appellant to actively pursue the appeal to its logical conclusion. 11. The delay in the present matter is not only considerable but has also remained wholly unexplained. In the absence of any justification from the Appellant, the Court is unable to attribute the delay to circumstances beyond the Appellant's control. The inevitable inference is that the Appellant has failed to exercise the diligence expected of a litigant who genuinely intends to pursue an appeal. 12. The prejudice suffered by the Respondent is equally apparent. The judgment sought to be challenged was delivered several years ago, yet the Respondent continues to be denied the fruits of that judgment solely because of an appeal that has remained dormant. As courts have repeatedly observed, justice is not served where a successful litigant is indefinitely kept away from enjoying the benefit of a lawful decree due to an indolent appellant. 13. In the circumstances of this case, the Court is satisfied that the delay has been inordinate, inexcusable and prejudicial to the Respondent. The Appellant has failed to demonstrate any intention of prosecuting the appeal or any reason that would warrant the Court's continued indulgence. **DETERMINATION** 1. Having considered the Notice of Motion dated 29th May 2024, the affidavit in support thereof, the Respondent's written submissions, the record before this Court and the applicable law, the Court is persuaded that the Respondent has established sufficient grounds to warrant the exercise of this Court's discretion in favour of dismissing the appeal for want of prosecution. 2. The power to dismiss an appeal is undoubtedly discretionary and, like all judicial discretion, must be exercised judiciously, on sound legal principles and with due regard to the circumstances of each case. The Court of Appeal in **Mbogo & Another v Shah(supra)** observed that judicial discretion is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, and not to aid a litigant who has deliberately sought to obstruct or delay the course of justice. 3. The record before this Court does not disclose any circumstance demonstrating that the Appellant's failure to prosecute the appeal resulted from inadvertence, mistake or any other excusable cause. On the contrary, the appeal has remained dormant for a prolonged period, and despite being served with the present application, the Appellant neither filed a response nor offered any explanation for the delay. The silence on the part of the Appellant can only reinforce the inference that there has been a complete lack of interest in pursuing the appeal. 4. It is trite that the filing of an appeal does not, in itself, amount to prosecution of the appeal. An appellant who invokes the appellate jurisdiction of the Court assumes the corresponding obligation of ensuring that the appeal is progressed expeditiously. The Court cannot countenance a situation where an appeal is filed merely to suspend the enjoyment of a successful litigant's judgment without any genuine effort being made to have the appeal heard and determined. 5. This position accords with the overriding objective embodied in **Sections 1A and 1B of the Civil Procedure Act**, which obligates parties to assist the Court in the expeditious disposal of proceedings. The duty to facilitate the just, proportionate and timely determination of disputes is a shared responsibility between the Court and litigants. A party who remains inactive for years without any explanation cannot be heard to complain when the Court invokes its case management powers to bring litigation to an end. 6. The constitutional command under **Article 159(2)(b)** that justice shall not be delayed is equally implicated. Delay in the administration of justice is prejudicial not only to the parties but also to public confidence in the judicial process. As the Supreme Court observed in ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others(supra)***, procedural rules exist to facilitate the fair and orderly administration of justice and are not intended to be ignored by parties who seek the Court's equitable intervention. 7. The Court is equally alive to the principle that disputes should, where possible, be determined on their merits. Indeed, dismissal of an appeal is a draconian remedy because it forecloses a party's right to challenge the decision of the lower court. For that reason, courts have consistently exercised the power sparingly and only where the circumstances clearly justify such intervention. 8. However, the right to be heard is not an open-ended licence to institute proceedings and thereafter abandon them indefinitely. Litigation must attain finality. As has often been stated by the superior courts, justice cuts both ways. While an appellant is entitled to pursue an appeal, a successful litigant is equally entitled to enjoy the fruits of a valid judgment without being subjected to endless and unexplained delays occasioned by an indolent opponent. 9. In the present matter, the Respondent obtained judgment in the subordinate court on **15th August 2019**. Although the Appellant lodged the present appeal in September 2021, no meaningful steps have been taken towards its prosecution. Several years have since elapsed. The delay is substantial, remains wholly unexplained, and has continued to deny the Respondent the benefit of the judgment lawfully obtained in the trial court. 10. The Court is therefore satisfied that the continued pendency of this appeal serves no legitimate purpose. Rather, it amounts to an abuse of the appellate process by unnecessarily keeping alive litigation that the Appellant has shown no willingness to prosecute. To permit the appeal to remain on the Court's docket in those circumstances would undermine the overriding objective of the Civil Procedure Act, offend the constitutional principle of expeditious justice, and occasion continuing prejudice to the Respondent. 11. Consequently, this Court finds that the Respondent's Notice of Motion dated **29th May 2024** is meritorious. The interests of justice, the efficient administration of the Court's appellate jurisdiction, and the need to bring litigation to its logical conclusion all militate in favour of terminating the appeal. **DISPOSITION** 1. In the final analysis, the Court is satisfied that the Respondent has demonstrated that the Appellant has failed to prosecute this appeal for an inordinate period without any reasonable or satisfactory explanation. The prolonged inactivity, coupled with the Appellant's failure to oppose the present application or demonstrate any intention of pursuing the appeal, leads the Court to the inescapable conclusion that the appeal has effectively been abandoned. 2. The discretion vested in this Court under **Order 42 Rule 35** of the Civil Procedure Rules is intended to prevent the abuse of the appellate process and to ensure that litigation is concluded within a reasonable time. The Court is satisfied that this is an appropriate case in which that discretion ought to be exercised in favour of the Respondent. 3. The Court reiterates that the administration of justice demands not only that litigants be afforded a fair opportunity to ventilate their grievances, but also that successful parties should not be deprived of the fruits of their judgments through prolonged and unexplained delays. To permit this appeal to remain pending in the absence of any demonstrable effort towards its prosecution would be inconsistent with the overriding objective under Sections 1A and 1B of the Civil Procedure Act and the constitutional imperative under **Article 159(2)(b)** that justice shall not be delayed. 4. The Court therefore finds the Respondent's Notice of Motion dated **29th May 2024** to be well founded and meritorious. 5. Accordingly, the Court makes the following orders: 1. ***The Respondent's Notice of Motion dated 29th May 2024 is hereby allowed.*** 2. ***The Appellant's appeal in Civil Appeal No. E626 of 2021 is hereby dismissed for want of prosecution pursuant to Order 42 Rule 35 of the Civil Procedure Rules, 2010.*** 3. ***The Deputy Registrar shall forthwith return the original lower court file in Milimani CMCC No. 6712 of 2016 to the trial court to facilitate execution of the judgment and any consequential proceedings.*** 4. ***The Respondent shall have the costs of both the application dated 29th May 2024 and the appeal*.** 6. It is so ordered. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 28TH DAY OF JULY, 2026.** **HON. L. P. KASSAN** **JUDGE**