[2017] KEHC 2468 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL APPEAL NO. 394 OF 2012

LOCHAB BROTHERS LIMITED.........APPELLANT/RESPODENT

-VERSUS-

TOBIAS OWINO................................RESPONDENT/APPLICANT

RULING

The Respondent who is the applicant herein filed Chamber Summons dated 22nd May, 2015 seeking orders that the Appeal lodged by the Appellant be dismissed for want of prosecution and the costs of the application as well as that of the appeal be awarded to him. The Application is filed under the provisions of Order 42 Rule 35 of the Civil Procedure Rules, 2010. In a Supporting Affidavit sworn by KENNEDY OMBATI, advocate for the Respondent, it is averred that since the Appeal was filed on 15th August, 2012, the Appellant has not taken any steps to set down the appeal for directions and that the Respondent wrote to the Deputy Registrar on 6th August, 2014 asking the Registrar to dismiss the Appeal

In a Replying Affidavit dated 25th June, 2015 and sworn by MWANGI GATHURI, the Appellant opposed the application and stated that since the appeal was filed, the Deputy Registrar has written several letters asking for the lower court file. However, though the Appellant alleges that the Respondent is aware of that fact, the said letters have not been annexed to the Affidavit. Nonetheless, the Appellant averred that he is ready and willing to take directions on its appeal as soon as the lower court file is obtained.

The court has considered the material before it. The law on dismissal of Appeals for want of prosecution is in Order 42 Rule 35 of the Civil Procedure Rules. The Rule provides:-

35 (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.

My understanding of this rule is that before an Appeal can be dismissed on an application by the Respondent, the same ought to have been set down for directions and such directions issued in the first instance. This position was elaborated in the case of Suresh Ruginath Raniga & Another v Sagar Mohan S.M.Ram (Civil Appeal no. 433 of 2012), where the court held that:

The Appellants’ counsel submitted that until and unless directions are issued, an Appeal cannot be dismissed for want of prosecution; and that the procedure of dealing with an Appeal where directions have not been issued is that contemplated in Order 42 rule 35(2) and not Order 42 rule 35(1). I am in agreement with these submissions. In the caseof Kirinyaga General Machinery v. Hezekiel Mureithi Ireri HCC No.98 of 2008 while interpreting Order XLI rule 31 (now Order 42 rule 35), Kasango J.,observed:-“It is clearly seen from that rule that before the respondent can move the court either to set the Appeal down for hearing or to apply for dismissal for want of prosecution, directions ought to have been given as provided under rule 79B. Directions have never been given in this matter. The directions having not been given the orders sought by the respondent cannot be entertained.”

From the record, I note that no directions have been issued in this Appeal. Under Order 42 rule 35(1), I see no reason to deviate from the holdingin Kirinyaga General Machinery vs. Hezekiel Mureithi Ireri.This Appeal therefore cannot be dismissed for want of prosecution under Order 42 rule 35(1).

This application was canvassed by way of written submissions where the Respondent submitted that it is unjust and unfair for the Appellant to file and serve an Appeal and thereafter sit back without taking any step to prosecute the same. On that note, the Respondent urges this Court to invoke its inherent jurisdiction and make such orders as are necessary to prevent abuse of Court process and ensure that justice is delivered justly. The Appellant on the other hand urges this Court to allow them a chance to ventilate its case and the same be decided on merits and not on legal technicality.

It is obvious that there has been delay in having this Appeal heard and determined which delay has not been satisfactorily explained by the Appellant. However, the Appellant commits to set down the Appeal for hearing within the next 30 days as the lower court file has already been availed.

In the spirit of section 3A of the Civil Procedure Act, which preserves the inherent power of the court to make such orders as may be necessary for the ends of justice,I decline to grant this Application, and order that for expeditious administration of justice to both parties, the Appellant do file the record of Appeal within 15 days and thereafter list the Appeal for directions within the next 15 days after filing the record of Appeal. Failure to comply with either of the orders, the Appeal shall stand dismissed.

Costs of the Application shall abide the outcome of the Appeal.

It is so ordered

Dated, Signed and Delivered at Nairobi this 3rd Day of November, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………. For the Appellant/Respondent

…………………………. For the Respondent/Applicant