[2022] KEHC 16182 (KLR)

Kinuthia v Nairobi Water & Sewarage Co Limited (Civil Appeal 357 of 2012) [2022] KEHC 16182 (KLR) (Civ) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16182 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 357 of 2012

JN Mulwa, J

December 8, 2022

Between

Rhumba Kinuthia

Appellant

and

Nairobi Water & Sewarage Co Limited

Respondent

Ruling

1. By an application dated November 12, 2021, the respondent in this appeal, Nairobi Water & Sewerage Company Limited sought orders against the appellant, Rumba Kinuthia;-1. That the appeal filed against the respondent on July 13, 2012 be dismissed for want of prosecution.2. That the money deposited in a joint interest earning account between the advocates of the appellant and the respondent on October 8, 2020 be released to the respondent’s advocates.3. That the appellant do pay costs of the application.

2. The application is premised on grounds stated at the face of the application, and supporting affidavit sworn on the 12th of November 2022 by one Ephraim Kinuthia, the zonal coordinator of the respondent, and annextures attached thereto.

3. In opposing the application, the appellant swore a replying affidavit on the 6th of March 2022. I have perused the replying affidavit to discern therefrom the reasons put forth for non-prosecution of the appeal. The appellant blames the death of his former advocate in October 2020, and inability to secure a date for taking directions on the appeal and problems with online filing system during the Covid-19 pandemic period. Two letters of request for a date for directions are attached. They are dated February 4, 2021 and February 8, 2022.

4. The appellant further faults the applicant for being indolent and failure to comply with a consent letter executed by both parties and duly filed. It is therefore urged that the application lacks merit and ought to be dismissed.

5. In the supporting affidavit, the applicant/respondent cites a consent letter entered by the parties on the 15th of July 2019 whereof the court, in a ruling delivered on April 8, 2019 directed the appellant to deposit a sum of Kshs 500,000/- into an interest earning account in the parties’ advocates names into an escrow account which he complied with, pending hearing of the appeal.

6. Further, by the said consent order, the appellant was to set down the appeal for directions on or before the 31st of October 2019 (within three months from the date of filing of the consent). It was also a term of the consent that in the event of failure by the appellant to set the appeal for directions before the 31st of October 2019, the appeal would stand dismissed and the funds in the joint account be released to the respondent’s advocate.

7. The respondent avers that the appellant failed and neglected to comply with the terms of the consent; that three years since the date of the consent the appeal has not been set down for directions. It is therefore urged that the appeal should be dismissed for want of prosecution in compliance with the consent orders. The respondent further contends that the continued delay in prosecuting the appeal has caused prejudice and injustice to the respondent.

8. Both parties filed written submissions, which I have carefully considered.In my considered view, the only issue that arises for determination is one; whether the appeal should be dismissed for want of prosecution.

9. The appeal was filed on 13th of July 2012. By the consent entered into by both parties on the 15th of July 2019, and annexed to the respondent’s application as annexture “EK-1”, progression of the appeal was agreed upon and the appellant complied with part thereof by depositing a sum of Kshs 500,000/- into a joint interest earning account in the advocates’ names.

10. However, the second part of the consent has not been complied with by the appellant three years down the line. The appellant has failed to set down the appeal for directions before a judge. The order was on or before the 31st of October 2019, and it was expressly agreed “that in the event of failure on the part of the appellant to set down the appeal for directions before the 31st of October 2019, the appeal do stand dismissed and the funds in the joint interest earning account be released to the respondent’s advocates.”

11. The immediate concern that arises from the above consent and the non-compliance with the terms thereof, which is not disputed by the appellant in his replying affidavit and submissions is whether there is a competent appeal, or any appeal on record, in view of part three of the consent.

12. I am persuaded that the appeal stood dismissed on the 31st of October 2019 when the appellant failed to set down the same for directions before the judge. None of the parties to this appeal and application has told the court that the consent entered into by the parties on the 15th of July 2019 was ever set aside, or varied. As such, I find and hold that the appeal filed on the 13th of July 2012 against the respondent stood dismissed on the 31st of October 2019.

13. What the appellant is trying to do in his response and submissions is to give reasons for his failure to fully comply with the consent; which reasons are as a matter of fact post the demise of the appeal – that is after the 31st of October 2019; when there was no appeal on record.

14. The court notes that the appellant is an advocate of this court, and the death of his former advocate in 2020 did not contribute to his failure to comply with the court orders before the onset of Covid-19 pandemic in March 2020 when court registry operations were downscaled. In any event, the appeal stood dismissed before the onset of the Covid-19 pandemic. Had the appellant been more vigilant and interested in the prosecution of his appeal, nothing stood in his way by the 31st of October 2019, and nothing has been stated to have caused the delay, as the two letters written to the deputy registrar were dated February 4, 2021 and February 8, 2022 when the appeal had already been dismissed due to his indolence; for which no explanation has been tendered.

15. In the case of Thathini Development Company Limited v Mombasa Water and Sewerage Company & another [2022] eKLR, the court held that;“It is the duty of the court to do justice between the parties, section 1B of Civil Procedure Act, cap 21 provides that there should be just determination, effective and timely disposal of proceedings and effective use of judicial time and resources……The court will not allow the matter to be filed and whereby once the parties obtain interim orders then proceed to keep the file idle.This causes the clogging of the justice system and unacceptable for nothing ………. A suit is dismissed for want of prosecution, means that the parties therein failed to aid the court in meeting its overriding objective.”

16. Further, in the case Mbithuka Titus v Jackline Mutindi [2020] eKLR, the court citing the Court of Appeal in Union Insurance Company of Kenya Limited v Ranzan Abdul Dhauji; Civil application number Nai 179 of 1998 held: -“The law is not that a party must be heard in every litigation. The law is that parties must be given a reasonable opportunity of being heard and once that opportunity is given and is not utilized, then, the only point on which the party not utilizing the opportunity can be heard is why he did not utilize it”

17. By the above, it is clear that the appellant sat on his rights, and failed to comply with what he expressly agreed to do, for unexplained reason or at all by the date agreed upon. He literally went into slumber, and only awakened by the respondent’s application dated November 12, 2021! It appears to me that even then, the appellant never realized that he had failed to comply with the terms of the consent he agreed to comply with; and that as he undertook to file a response thereto, by the replying affidavit, there was no competent appeal on record!

18. By the above circumstances, there being no appeal on record, my hands are tied and I can do nothing more than to render myself that the appeal dated July 13, 2012 stood dismissed on the 19th day of October 2019.

19. The upshot is therefore that the respondent’s application dated November 12, 2021- prayer number one- cannot be allowed, as the subject of the application; the appeal, was none existent at the time the application was filed.

20. However, prayer number 2 of the application is merited and is hereby allowed.Consequently, I order and direct that the sum of Kshs 500,000/- deposited in the advocates names – Mbugwa Atudo & Macharia Advocates and Rumba Kinuthia & Company on the 8th of October 2020; be released to Mbugwa, Atudo & Macharia Advocates forthwith.There shall be no order as to costs on the application.Orders accordingly.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 8TH DAY OF DECEMBER, 2022J. N. MULWAJUDGE