[2017] KEHC 1975 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CIVIL APPEAL NO. 43 OF 1996

LUCAS CHANGWONY & 6 OTHERS........APPELLANTS

VERSUS

STANLEY K. CHEBIATOR....……..............RESPONDENT

RULING

1. The respondent prays that this appeal be dismissedfor want of prosecution. The notice of motion is dated 8th May 2017. The respondent pleads that the appeal was lodged over twenty years ago. To be precise, on 16th April 1996. The appeal was earlier dismissed for want of prosecution on 13th June 2006 but it was reinstated by the Court of Appeal on 29th October 2015. He avers that since the latter date, no steps have been taken by the appellant to set it down for hearing.

2. Those matters are buttressed by a deposition sworn by Mr. Alfred Nyairo, the respondent’s counsel of record, on 8th May 2017. The substance of the motion is that the appellants are disinterested in the appeal; and, that the delay is prejudicial to the interests of the respondent.

3. The appellant opposes the application. There is a replying affidavit sworn by the appellants’ counsel, Mr. Omollo Aseso on 21st June 2017. The riposte is that the motion for dismissal is an abuse of court process. He deposes that the court file went missing. On 13th December 2016, the appeal was slated for hearing but the court was not in session. An application for reconstruction of the court file was lodged on 10th March 2017. Lastly, on 13th March 2017, the appellants wrote to the Deputy Registrar of the Court seeking a mention for directions. In a synopsis, the appellants contend that the notice of motion is premature; and, should be dismissed.

4. On 19th September 2017, learned counsel for the appellants and respondent made brief oral submissions. I have considered the rival arguments. I have also paid heed to the records before me, the pleadings, and depositions.

5. I have studied the court record. It is true that the memorandum of appeal was lodged over twenty years ago. The appeal was earlier dismissed for want of prosecution on 13th June 2006. It was restored by the Court of Appeal for considered reasons in a judgment of the Court dated 29th October 2015. It is beyond contest that the appeal has not been set down for hearing since the latter date.

6. The crux of the matter is whether the delay is excusable. I remain alive that in our adversarial system of justice, it remains the primary obligation of the appellant to follow up on its appeal. See Anne Chege & another v Peter Musasya, Nairobi, High Court Civil Appeal 840 of 2003 [2006] eKLR, Daniel Okoko v Dan Owiti, Nairobi, High Court Civil Appeal 452 of 2003 [2006] eKLR.

7. The Court of Appeal ordered that this appeal be heard on merit. The old adage goes that once bitten twice shy. I would have expected the appellants to seize the moment and list the appeal for hearing. For starters, the original court file is available. True, an application for “reconstruction” of the court file was lodged on 10th March 2017. Surprisingly, it was not made in a miscellaneous cause: it was intituled in this appeal. At the hearing of this application on 19th September 2017, all three copies of the application were in the hands of Mr. Aseso, learned counsel for the appellants. In short, the application never found its way into the court file.

8. The record is not clear about the hearing scheduled for 13th December 2016. But as the respondent does not contest the assertion, I will not begrudge the appellants. It is also evident that on 13th March 2017, the appellants wrote to the Deputy Registrar of the Court seeking a mention date for directions. There was no reply from the Deputy Registrar. Granted the circumstances, there has been substantial delay; but I cannot say that the appellants are entirely to blame for the laches.

9. Order 42 rule 35 (1) expressly authorizes an aggrieved respondent to move the court for dismissal if the appeal is not set down for hearing three months after taking directions. The test in a matter of this nature was well laid out in Ivita v Kyumbu [1984] KLR 441. It is whether the delay is prolonged and inexcusable, and if it is, whether justice can still be done. In that event, instead of dismissal, the court may exercise its discretion and fix the suit for hearing.

10. One consideration in this case is that the underlying dispute relates to use and occupation of land known as Irongo/Kapsoiyo/11. The respondent obtained a decree in the lower court to evict the appellants. The appellants contend in the present appeal that the case was closed before their evidence was taken. Their case in the lower court was that the respondent was not the registered owner of the suit land.

11. The delay here is lengthy. There is no doubt that the continued delays are prejudicial to the respondent. I have also stated that some of the explanations for delay do not find support in the record. But I have taken into account the subject matter of the appeal and the need for proportionate justice. In the end, the notice of motion dated 24th October 2016 is disallowed. I am however minded to grant the respondent thrown away costs. That will perhaps assuage the respondent; and, keep the appellants wide awake.

12. The upshot is that the respondent’s notice of motion dated 8th May 2017 is disallowed. The appellants shall however pay the respondent thrown away costs of Kshs 20,000 within the next thirty days. The appellants shall also ensure that the appeal is placed before a judge in chambers for directions within thirty days of today’s date; and, that the appeal is listed for hearing within a further ninety days. If the appellant fails to meet any of the conditions within the set time, the appeal shall automatically stand dismissed.

It is so ordered.

DATED, SIGNED and DELIVERED at ELDORETthis 7th day of November 2017.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:

Ms. Adhiambo for Ms. Odwa for the respondent instructed by Nyairo & Company Advocates.

Mr. Aseso for the appellants instructed by Gicheru & Company Advocates.

Mr. J. Kemboi, Court clerk.