[2017] KEHC 4088 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 637 OF 2011

KIMAIYO KIPTANUI & PETER G. MUNYA T/A KIMAIYO & MUNYA ADVOCATES.....APPELLANTS

-V E R S U S –

KENYA PIPELINE COMPANY LIMITED..........................................................................RESPONDENT

RULING

1. Kenya Pipeline Co. Ltd, the respondent/applicant herein, filed an action against Kimaiyo Kiptanui & others the appellant herein, before the Senior Principal Magistrate, Milimani Commercial Courts. In the aforesaid suit, the respondent sought for ksh.870,000/= together with interest from October 2005 till payment in full plus cost and interest. The claim was based on loss allegedly suffered by the respondent after the appellant entered into a consent on behalf of the respondent without instructions by the respondent. The suit was heard and in the end, judgment was entered in favour of the respondent. The appellants were aggrieved, consequently they preferred this appeal.

2. The respondent has now taken out the motion dated 29th July, 2016 the subject matter of this ruling, in which it sought for the following orders:

1. That the appeal be dismissed with costs to the respondents.

2. That costs of this application be paid by the appellant in any event.

3. The motion is supported by the affidavit of Purity K. Mbabu.The appellant filed a replying affidavit of Kimaiyo Kiptanui to oppose the motion. When the motion came up for interpartes hearing, learned counsels recorded a consent order to have the motion disposed of by written submissions.

4. I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the application. I have also considered the rival submissions.

5. The applicant/respondent avers that the appellants filed this appeal on 13/Dember/2011 but have never taken any steps to prosecute it. Consequently, it has never been listed for directions and the appellants have never made any effort to prosecute the same. The applicant confirms that they received letters from the appellants’ advocates proposing an amicable out of court settlement where they wrote back requesting for the basis of the proposal to pay 60% of the decretal amount and have received no response. It’s the applicants submission that the appellants have no interest in prosecuting the appeal and this is keeping the respondent away from the fruits of its judgment for no reason and for this reason this appeal should be dismissed with costs for want of prosecution.

6. The appellant opposed the motion arguing that in the contrary the delay in filing/prosecuting this appeal was as a result of the ongoing out of court settlement negotiations between the parties. Further, that it is now in their knowledge via this application that the respondent is no longer interested in the out of court settlement and the appellants would now undertake all the necessary steps to prosecute the appeal.

7. The appellants have now filed the record of appeal and is only fair and just for the appellants’ appeal to be admitted for hearing and to be heard and determined on merit. For these reasons the appellants argued that the respondents’ application should be dismissed.

8. The principles to be considered in determining an application for dismissal of an appeal for want of prosecution are well settled/ reiterated in Order 42 Rules 35(1, 2) of the Civil Procedure Rules, 2010, it provides:

“Unless within three months after 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.

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 chamber for dismissal.”

9. The applicant has stated that the appellants have lost interest in the appeal. The appellants are of the contrary view that they have been keen to have the appeal prosecuted. The appellants aver that they have gone ahead to file their record of appeal which confirms their willingness to pursue this appeal to its logical conclusion. The appellants also submit that the delay by the appellants to file the record of appeal was occasioned by the delay in obtaining certified copies of proceedings and judgment from the subordinate court.

10. It is the applicant’s averment that the appeal be dismissed with costs for want of prosecution which view is rebutted by the appellants to be premature with their appeal deserving the light of day.

11. Having considered the rival submissions and the material placed before this court, I find that the appellants have provided sufficient explanation for the delay and as such I disallow the respondent/applicant’s motion.

12. Costs of the motion to abide the outcome of the appeal.

Dated, Signed and Delivered in open court this 14th day of July, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Appellant

.................................................. for the Respondent