[2023] KEHC 26881 (KLR)

Kimenye & another v Otieno (Civil Appeal E10 of 2020) [2023] KEHC 26881 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26881 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal E10 of 2020

HM Nyaga, J

December 13, 2023

Between

Patrick Kimenye

1st Appellant

Peter Njuguna

2nd Appellant

and

James Okoth Otieno

Respondent

Ruling

1. The Applicant vide an application dated 24th February,2022 brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, Order 42 Rules 11,13 and 35 of the Civil Procedure Rules seeks for ORDERS:1. That this Honourable Court be pleased to strike out the Memorandum of Appeal herein.2. That the Honourable Court be pleased to dismiss the instant appeal for want of prosecution.3. That the costs of this Application be provided for.

2. The Application is premised on the grounds on its face and supported by an affidavit sworn by the Applicant’s Counsel, Evans Juma Matunda on the even date. He deponed that the judgement was entered on the 27th May, 2020 in Nakuru CMCC No. 1145 of 2017 and following the delivery of the judgement, the Respondents filed an appeal on 18th November, 2020.

3. The deponent further stated that on 18th October, 2021, the parties herein recorded a consent that there be stay of execution of 30 days pending appeal on condition that the Respondents deposit half of the decretal sum in a joint interest earning account and the Applicant to provide all requisite documents within 7 days’ failure to which applicants issue a bank guarantee.

4. The deponent averred that both parties complied with the said consent but since then the respondents have neither served them with a record of appeal nor taken any step to set down the appeal for directions and they are therefore, unduly delaying the prosecution of the Appeal. He deposed that there has been inordinate and inexcusable delay in setting down the Appeal herein for hearing despite the fact that the respondents were granted leave to file the said appeal out of time which amounts to an abuse of the court process. He further averred that it has been over one year since the respondents lodged the Appeal and they have never taken any meaningful steps to prosecute it.

5. The deponent believed the appeal was brought in bad faith and it’s a tactic by the respondents to deny the applicant the fruits of his judgment.

6. He contended that applicant has suffered great inconvenience due to the respondents’ disinterest in prosecuting the appeal to its conclusion and prays that the appeal be dismissed for want of prosecutions and the applicant be awarded costs.

7. In opposition to the Application, Lawrence Njuguna, the Appellants’/Respondents’ counsel swore a replying affidavit on 6th June,2022.

8. He deposed that the instant application is misconceived and should be dismissed with costs to the Respondents.

9. He further deposed that on 23rd November,2022 the respondents sent a letter to the Executive Officer requesting for copies of typed proceedings, typed judgement and decree in this matter but the said documents were not available.

10. He averred that due to lack of the certified copies of the above documents, the Respondents have not been able to file and serve the Record of Appeal thus occasioning delay in prosecuting the appeal.

11. He deposed that the delay by the Nakuru Law Court Registry in supplying the said documents should not be visited upon the respondents by striking out the Memorandum of Appeal.

12. He contended that striking out the Memorandum of Appeal will occasion a great injustice to the Respondents as they are still desirous in prosecuting this appeal.

Applicant’s Submissions 13. The Applicant filed two sets of submissions. One is dated 2nd December,2022 and the other one is dated 13th October,2023.

14. The Applicants reiterated the contents of his affidavit that the respondents have not been vigilant in prosecuting their appeal.

15. He argued that there are no sufficient reasons given and the annextures attached to the replying affidavit does not demonstrate enough efforts to have the appeal prosecuted expeditiously.

16. He contended that he has suffered prejudice since it is now six years since the judgement was delivered in his favour and he is yet to enjoy the fruits of his judgement and this is a suitable circumstance where the court ought to exercise its discretion and dismiss the instant appeal for want of prosecution even though directions has not been taken. To this effect reliance was placed on the case of Hesbon Amata & another vs David Maina Waithaka [2014] eKLR in proper and suitable circumstances, the court always has jurisdiction to dismiss an appeal which has not been admitted.

17. The Respondent also relied on the case of Shamchulin A. Gothey vs Joseph Ng'ang'a Kuria [2013] eKLR where the court dismissed an appeal which had not been admitted for reasons that there was inordinate delay in prosecuting the appeal and the appellant did not seem interested in prosecuting the appeal to the detriment of the applicant who was entitled to the fruits of his Judgment.

Respondents’ Submissions 18. The Respondent submitted that this Honourable Court should not dismiss the Appeal as it is clear the Respondents have been solicitous in seeking for the certified copies of the proceedings, judgement and decree.

19. They submitted that the appeal raises triable issues which should be determined on merit.

20. To bolster their submissions, the respondents relied on the Articles 50(1) and 159(2)(d) of the Constitution and the case of Grace Njeri Theuri Vs. John Mburu Wainaina [2022] e KLR where the court held inter alia that the provisions of the law relating to dismissal cannot be read in isolation, and the bottom line is that directions must have been given before an appeal can be dismissed for want of prosecution.

21. The Respondents prayed that this Honourable Court calls for the lower court file to ensure the proceedings are typed and ready for collection.

Analysis & Determination 22. The issues for determination are whether the memorandum of appeal should be struck out and the appeal be dismissed for want of prosecution.

23. From the documents on record, I was able to discern that the appellant/respondent filed High Court Civil Misc. Application No. 80 of 2020. I have perused the said court file and note that the application sought inter alia, a stay of execution of the decree of the lower court and leave for the applicant to file appeal out of time. The matter was concluded by the consent dated 16th September 2020. The relevant clause therein was that the applicant therein(the respondent herein) was to file and serve the memorandum of appeal out of time within 14 days of that consent. It was a further consent that in default thereof among others, the respondent (the applicant herein) was to proceed to execute without notice.

24. Dismissal of appeal is provided for under Order 42 Rule 35 of the Civil Procedure Rules which stipulates as follows: -“(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.”.(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”.

25. It is not in dispute that directions had not been given in this appeal. This is because the appellant is yet to file the record of appeal as required. The legal position in this respect was well articulated in Pinpoint Solutions Limited and Another vs Lucy Waithegeni Wanderi (as the Legal Administrator of the Estate of James Nyanga Muchangi) [2020] eKLR the court held that: -“20. The provisions of the law relating to dismissal cannot be read in isolation. The bottom line is that directions must have been given before an appeal can be dismissed for want of prosecution. Indeed, there does not appear to be any penalty where an appellant fails to proceed as per Order 42 Rule 11 and Order 42 Rule 13 of the Civil Procedure Rules, 2010. 21. This court took the view that an appeal cannot be dismissed before directions had been given. As there was no indication that directions had been given herein, the Appeal herein could not be dismissed under Order 42 Rule 35(1) of the Civil Procedure Rules. In any event, there was also no evidence that the Registrar had issued a notice under Order 42 Rule 12 of the Civil Procedure Rules. There was also no indication that the lower court file and proceedings had been forwarded to the High Court for the Registrar to proceed as aforesaid…”

26. The same position was stated in Grace Njeri Theuri vs John Mburu Wainaina (2022) eKLR cited by the respondent.

27. Order 42 Rules 11, 12 and 13(1) were amended vide Civil Procedure (Amendment) Rules, 2020, Legal Notice No.22 of 2020 and provides: -“[11].A judge of the High Court shall, within thirty days of the filing of an appeal under section 79B of the Act, peruse the appeal and give directions in accordance with the provisions of section 79B of the Act.[12].Where the judge admits the appeal under section 79B of the Act, the registrar shall notify the appellant who shall serve the memorandum of appeal on every respondent within seven days of receipt of the notice from the Registrar.[13](1)Upon notice to the parties delivered not less than twenty-one days after the date of service of the memorandum of appeal the registrar shall cause the appeal to be listed for the giving of directions by a Judge in Chambers.”

28. Under the amendment Order 42 Rules 11, 12 and 13(1) the requirement to list the matter for directions is no longer a duty of the Appellant but a duty of the Deputy Registrar. The decision in Laban Onono and another vs Dan Owiti (2006) eKLR cited by the applicant said was made before the amendment to the rules and is thus not applicable.

29. Flowing from the decisions that I have referred to, it is evident that under Order 42 Rule 35(1), the respondent in an appeal cannot apply for dismissal of the appeal for want of prosecution unless within three months after the giving of directions under rule 13 the appeal has not been set down for hearing by the appellant.

30. It is to be noted that under Order 42 Rule 35 (2) of the rules, the court has powers to dismiss an appeal on its own motion if the same is not set down for hearing within a year from the date of filing and service of the memorandum of appeal. This process does not involve the respondent at all.

31. The appellant instituted their Memorandum of Appeal on 18th November, 2020 and to date no record of appeal has been filed or robust actions taken in this matter. The reason for delay is that the Court Registry never supplied them with copies of the typed and certified proceedings and Judgment for purposes of preparation of the Record of Appeal. They have annexed the letter dated 23rd November, 2021 requesting to be furnished with typed proceedings and certified copies of judgement and decree.

32. From the court record, it is evident that the lower court file has not been forwarded to this court, despite several reminders from this court to the lower court. Thus directions are yet to be given as envisaged by the law.

33. Therefore, although there has been inordinate delay on the appellant’s part there is an acceptable explanation to it.

34. Further, the court must consider the prejudice that might be suffered by the appellants if not granted their day in court. In this case the Applicant confirmed the respondents complied with stay conditions that was set pending appeal. I am of the considered view therefore that justice can still be done despite the delay as dismissal of a matter before party is substantively heard is a draconian action.

35. In the premises, it is only fair that the appellants get the opportunity to prosecute the appeal.

36. I disallow the Application and make the following orders;i.The appellants to file the Record of Appeal within 45 days from the date of this ruling.ii.Thereafter, the appeal to be listed for directions on a date to given by the court.iii.There shall be no orders as to costs.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 13TH DAY OF DECEMBER, 2023. H. M. NYAGA,JUDGE.In the presence of;Ms Obura for Respondent/Applicant