[2023] KEHC 24747 (KLR)

Kungu & 3 others v Kungu (Civil Appeal 86 of 2019) [2023] KEHC 24747 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24747 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 86 of 2019

SM Mohochi, J

November 3, 2023

Between

Nicholas Mwangi Kungu

1st Applicant

James Mbugua

2nd Applicant

Geoffrey Ng'ang'a

3rd Applicant

Robert Thuo Kiaru

4th Applicant

and

Peter Ndungu Kungu

Respondent

(Being an Application to reinstate the Appeal dismissed on 14th October 2021)

Ruling

1. Before this Court is a Notice of Motion Application dated 24th April 2023 filed pursuant to Sections 1A. 1B, 3A and 95 of the Civil Procedure Act, Chapter 21 Laws of Kenya and Order(s) 45 (1), 42(6) ,42(21), 50(6), and 51 (1) of the of the Civil Procedure Act, and is supported by the Sworn Affidavit of Victor Nganga seeking the following reliefs:i. SPENTii. SPENTiii. SPENTiv. THAT this Appeal being NAKURU HCCA NO. 86 OF 2019 be and is hereby reinstated for hearing and determination in the normal way.v. THAT this Honourable Court do make any such further Order(s) and issue any other relief it may deem just to grant in the interest of justice.vi. THAT the costs of the application be in the cause.

2. The Application is premised on the following grounds;i.THAT the Appellants instituted this Appeal vide a Memorandum of Appeal dated 15th May 2019, against the Judgment of the Honourable S. Wahome, PM delivered on 23/04/2019 in Molo CMCC 167 of 2016. ii.THAT despite relentless efforts, the Appellants have not been able to obtain the relevant documents from the lower Court to enable them file their Record of Appeal.iii.THAT as a result, the Appeal was dismissed on 02/05/2023 apparently due to notice to show cause that the Applicants were unaware of as the matter had an entirely separate Hearing Date set for 6th June 2023. iv.THAT there has been a pending application dated 12/01/2023 that elicited a response by the Appellants and which response is contained in the replying affidavit dated 17/01/2023. v.THAT the Advocate handling the Appeal had indeed diarized the matter for the Hearing Date set for 6th June 2023 and had been served with a Hearing Notice by the Respondent for the same exact date and is surprised to learn that the matter came up without their knowledge on 02/05/ 2023. vi.THAT the Appeal herein stands dismissed, and this thereby exposes the Appellants to imminent execution hence the urgency of this Application.vii.THAT the delay in filing the Record of Appeal was inadvertent and beyond the Appellants' control.viii.THAT the Appellants are greatly apprehensive that the Respondent may at any time commence execution against them as the Appeal stands dismissed.ix.THAT the Appellants have complied with stay conditions by depositing in a joint account Kshs. 1,167,392. x.THAT the Appellants contend that the delay occasioned so far in prosecuting the Appeal, in so far as it cannot be attributed to the Appellants, is not so unreasonable and/or inordinate as to prejudice the Respondent and such delay can always be compensated by an award of damages and/or costs.xi.THAT unless this Application is certified urgent and heard immediately and the orders sought herein granted, the Appellants stand to suffer irreparable loss, prejudice and harm.xii.THẤT under Article 48 of the Constitution of Kenya, 2010, access to justice for all is guaranteed and unlimited.xiii.THAT under Article 159 (2) (d) of the Constitution of Kenya, 2010, this Honourable Court is enjoined to administer justice without undue regard to procedural technicalities.xiv.THAT the Appellants are keen on prosecuting their Appeal and seek the indulgence of this Honourable court not to be ousted from the seat of justice.xv.THAT the Appellants are desirous and fully committed to ensuring the just and timely disposal of the Appeal herein and as such pray that the Appeal herein be reinstated and set down for Hearing in the normal manner.xvi.THAT the Appellants humbly believe that they have an arguable Appeal and should be given an opportunity to have the same prosecuted and determined on its merits.xvii.THAT accordingly it is only just. fair and in the interests of justice that the Appeal be reinstated/ re-admitted and the same be heard to a logical conclusion.xviii.That unless the Appeal is reinstated the Appellant stands to suffer irreparable loss, prejudice and damage and their Appeal will be rendered nugatory.xix.That the Application has been made without undue delay.xx.That the Application ought tom be allowed in the interests of justice.

3. This matter came up for directions and parties were allowed 30 day leave to file written submission but as at the time of preparation of this ruling Mr. Mboga Advocate for the Respondent was yet to comply and file any response or written submission.

4. The Application is thus unopposed by the Respondent.

5. In a nutshell and troubling fashion, the Applicant alleges that the Judgment has an error apparent, which is an accidental slip and that the intention of the judge was to a contrary position and thus proposed an amendment.

6. This court had issued interim directions on the 16th May 2023 and on the 21st July 2023 the Court gave directions on the disposal of the Application by way of filed written submissions of which the Applicant had already complied.

Applicants case 7. That, he Appeal was dismissed on 02/05/2023 apparently due to a notice to show cause that the Appellants were unaware of as the matter had an entirely separate Hearing Date set for 6th June 2023

8. The Applicants submit, there is no likelihood that the Respondent will suffer prejudice if any, in the event that the Appellants are given time to prosecute their appeal finalization. Indeed, there is no prejudice at all to be suffered by the Respondent's as the conditions for stay of execution pending hearing of the appeal were fully complied with. The Appellants complied with stay conditions by depositing in a Joint account Kshs. 1,167,392 in fulfillment. The Respondent's interests are thus secured.

9. That, the Appellants have not obtained the requisite documents in order to file their Record of Appeal and have attached evidence of follow-up.

10. On the other hand, the gist of the matter is that the Appellants stand to suffer prejudice in the event that the appeal is not heard on merit since the Appellants would have lost their right to Appeal.

11. The Appellants' appeal has merits as demonstrated in the Memorandum of Appeal, and in the event that the Appeal is not heard to completion, the Appellants stand to lose their Constitutional right to Appeal and the right to have their case heard and determined on its merits. Indeed, this Honorable Court has on diverse occasions pronounced itself on striking a balance between the competing rights of the rival parties as the scenario herein.

12. Reliance is placed on the case of Njai Stephen v Christine Khatiala Andika [2019] eKLR the Court opined that every person is entitled as envisaged under Article 50 of the Constitution of Kenya to have a fair trial and held;“It therefore follows that every person ought not to be shut out from accessing court or having his day in court. Indeed, the right of a party to enjoy the fruits of his judgment must be weighed against the right of a party to access court to have his dispute heard and determined by a court or tribunal of competent jurisdiction."

13. That in view of the foregoing, it is the Appellants' humble submissions at the Appeal was not yet ripe for dismissal for want of prosecution. The Appellants rely on the case of Jurgen Paul Flach Vs Jane Akoth Flach, Nakuru Civil Appeal No.119 of 2012, the court rightly stated that where directions had not been issued, dismissal of an appeal for want of prosecution cannot be granted.) Moreover in Kirinyaga General Machinery Vs. Hezekiel Mureithi Ireri [2007] eKLR, Kasango J. ruled as follows:“It is clearly seen from that rule before the Respondent can move the court either to set the appeal down for hearing or to apply for dismissal (or want of prosecution directions ought to have been given as provided in Rule 8B. Directions have attached herein) never been given in this matter. Directions having not been given the orders sought by the Respondent cannot be entertained."

14. That further in Allan Otieno Osula Vs. Gurdev Engineering & Construction Ltd [2015] eKLR, the Court held as follows; -“It is therefore on the above grounds that I decline to strike out theappeal as prayed. I employ the principle that the right of appeal is a constitutional right and in as much as there has been delay which hashot been satisfactorily explained by the appellant, this court has to weigh the cost and prejudice that is likely to be occasioned to the appellant as well as the respondent, if the appeal is struck out at this stage without according the appellant an opportunity to be heard on the merits of the appeal. In the circumstances, I shall invoke the overriding objective principle in Order to obviate the hardship expense, delay and focus on substantive justice. I find albeit there was delay that it is in the interest of justice that the appeal should not be struck out as the Respondent can adequately be compensated by an award of costs."

15. The Applicants further relies on the case of Elem Investment Limited Vs John Mokora Otwoma [2015] eKLR, Aburili J noted as follows;“...in my view, the Court will not dismiss an appeal for want ofprosecution unless directions are issued. In addition, the prejudice that the Appellant is likely to suffer if this Appeal is dismissed is likely to be graver than the prejudice that the Applicant/Respondent would suffer if the Appeal is ordered to proceed, given that the Appellant has deposited the decretal amount in Court and settled some of the undisputed costs. In arriving at that conclusion, I am enjoined by the Court of Appeal decision in Abdurrahman Abdi Vs Safi Petroleum Products Ltd & 6 others [2011] eKLR, Civil Application No. Nai. 173 of 2010 where the Court stated:“The Court has to weigh the prejudice that is likely to be suffered by the innocent party and weigh it against the prejudice to be suffered by the offending party if the Court strikes out its document. The Court in that regard exercises judicial discretion'...I think it would be appropriate and in the wider interest of justice to allow the Appellant a chance to take appropriate steps to ensure the Appeal is set down for directions and hearing expeditiously."

16. That from the foregoing, it is clear that the Courts have been consistent when interpreting Order 42 Rule 35 and the same principle enunciated in the above cases also apply to this Appeal as directions have not been issued yet.

17. It is the Appellant's submissions that the hardship and prejudice likely to be occasioned to the Appellants in this matter is greater than the hardship to be occasioned to the Respondent since the Appellants will lose their opportunity to prosecute their Appeal and have the same determined on its merits.

18. That further, Article 159 of the Constitution of Kenya 2010 requires the Court to be more concerned with substance justice where possible instead of giving undue regard to technicalities and if this Appeal is not heard on merit, the Appellants would have been denied the benefit of substantive justice.

19. That in view of all the foregoing, it is the Appellants' submissions that the Appeal herein should not be dismissed and time granted to the Appellants file their Record of Appeal. Further, it is the Appellants' submissions that it is in the interests of justice that the Appeal is heard in the normal way with the Appellants being granted the chance to regularize the same so that directions may be given.

20. The Applicant thus prays that his Application be allowed and the Appeal be reinstated.

Analysis and determination 21. I have carefully considered the Notice of Motion Application dated 24th April 2023, the Sworn Affidavit of Victor Nganga and find as follows;i.As a condition of stay the Applicants deposited the entire decretal amount of Kshs.1,167,392 was deposited in a joint interest-bearing account in the names of counsel by parties.ii.The Respondent had notified the Applicants of a Hearing Date set for 6th June 2023 while still prosecuting an application for dismissal and was surprised to learn that the matter came up without their knowledge on 2nd May 2023. iii.The delay in filing the Record of Appeal was inadvertent and beyond the Appellants' control.iv.The justification of the delay has adequately been explained in response.

22. From the foregoing this court allows the Application on the following terms;

i. The Appeal is hereby reinstated.ii. The Appellants shall set down the Appeal for Directions/Hearing within sixty (60) days from the date hereof.iii. The Costs shall in the cause.It is so Ordered

DATED, SIGNED AND DELIVERED AT NAKURU THIS 3RD DAY OF NOVEMBER 2023. _________________________________Mohochi S.M.Judge of the High Court.In the presence of;-Ms. Kirui for the RespondentCourt Assistant - Schola