[2022] KEHC 10785 (KLR)

Komoni v Bosco Kiprotich Kemboi & Janet Mmbone Jefunea (Suing as the administrators of the Estate of):Mercyline Chepkorir(Deceased) (Civil Appeal 146 of 2019) [2022] KEHC 10785 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10785 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 146 of 2019

EKO Ogola, J

June 9, 2022

Between

Harun Menywa Komoni

Appellant

and

Bosco Kiprotich Kemboi & Janet Mmbone Jefunea (Suing as the administrators of the Estate of):Mercyline Chepkorir(Deceased)

Respondent

(Being an appeal from the Judgment of Honourable C. Obulutsa, chief Magistrate in Eldoret CMCC No.808 of 2017)

Ruling

1. By way of Notice of Motion application dated November 4, 2011, the applicant herein seeks the following orders;a)That this appeal be dismissed for want of prosecution.b)Costs be paid by the appellant.The application is based on the grounds set therein and the deponements in the affidavit in support thereof.

2. The respondents, being dissatisfied with the judgment delivered in CMCC 808 of 2017 by Hon. C. Obulutsa on September 20, 2019, instituted the present appeal vide a memorandum of appeal dated October 18, 2019.

3. The applicant’s case is that it has been two years since the appeal was filed and there has been no action taken to prosecute the same. Further, the applicants’ advocates requested the appellants’ advocates to furnish them with the record of appeal or move the court but all in vain. Correspondence to the supporting affidavit were annexed and marked same CKK-1.

4. The respondent opposed the application vide a replying affidavit dated November 13, 2021. The counsel for the respondent deposed that the appellant is still keen on prosecuting the appeal, and has made several trips to the court registry to enquire whether the proceedings have been typed and has also written to the court enquiring whether the proceedings had been typed but has not received any response. She annexed proof of the correspondences as annexure AHO1. It is the respondent’s case that the preparation of proceedings is a preserve of the court and the appellant should not be made to suffer or be punished if there is any delay.

5. The respondent contends that the application is premature as the appeal has not been admitted and no directions have been given by the court. Further, that Order 42, Rules 35 (1) and (2) of the Civil Procedure Rulesonly contemplate the dismissal of the appeal where directions have already been given by the judge on how the appeal is to proceed. The respondent avers that they have always been willing to have the appeal heard expeditiously but this has been hampered by the fact that proceedings have not been availed to the respondent. She prays that the application be dismissed with costs.

6. Upon perusing the application and pleadings the only issue for determination is whether or not the application has merit.

7. Order 42 Rule 35 (1) of the Civil Procedure Rules states;“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.”.

7. Order 42 Rule 35 (2) of the Civil Procedure Rules states:-“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”

7. In Pinpoint Solutions Limited andanother v Lucy Waithegeni Wanderi (as the Legal Administrator of the Estate of James Nyanga Muchangi)[2020] eKLR, Hon. Justice J. Kamau 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…”

7. However, despite directions not being issued, it is not guaranteed that an appeal will not be dismissed for want of prosecution in such circumstances. Odunga J in China Road & Bridge Corporation v John Kimenye Muteti[2019] eKLR held that; -“19. It is therefore clear that it is upon the appellant to trigger the process of the giving of directions and an appellant who sits on his/her laurels and when confronted with an application to dismiss the suit contends that no directions have been given when he has not moved the court to give the said directions cannot but face censure from the court. To contend that an application for dismissal of an appeal is premature for failure to give directions when the appellant himself has not moved the court to give directions to my mind cannot be taken seriously where the delay is contumelious. Nothing bars the court from dismissing an appeal even where no directions have been given…….”

7. The respondent annexed copies of correspondence to the registry requesting for copies of the proceedings on June 19, 2020, August 12, 2020 and February 25, 2021. I also take note that there was the Covid 19 pandemic which affected the delivery of services and the respondent had no fault in the delay of the appeal. There is no indication that the lower court file and proceedings had been forwarded to the High Court for the Registrar to proceed as aforesaid under Order 42 Rule 35 (2). The appellant has made an effort to move the appeal forward and therefore I find that the application for dismissal for want of prosecution is unmerited.

8. The application is dismissed with costs in the cause.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 9TH DAY OF JUNE 2022E. O. OGOLAJUDGE