[2022] KEHC 3055 (KLR)

Maina & another v Musee (Civil Appeal 93 of 2018) [2022] KEHC 3055 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3055 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 93 of 2018

JK Sergon, J

June 17, 2022

Between

Christopher Maina

1st Appellant

Wilson Ngige

2nd Appellant

and

Mary Musee

Respondent

Ruling

1. The instant Application dated April 2, 2019 is seeking for orders that;i.The Appellant’s Appeals being the instant suit against the Respondent/Plaintiff be dismissed for want of prosecutionii.The registrar lists the Appeal before a judge in chambers for dismissal for want of prosecutioniii.Costs to the Applicant

2. The application is supported by the grounds set out on the face of the motion and the depositions in the Supporting Affidavit of Musili Mbiti on April 2, 2019. It is stated that Appellants have refused, neglected and/or failed to prosecute the Appeal for a period over a year.

3. It is contended that judgment was delivered in favour of the Applicants by the trial court on February 5, 2018 and consequently, an appeal was filed by the Respondent on February 21, 2018 vide a Memorandum of Appeal dated February 19, 2018.

4. It is further stated that the Respondent has not taken any steps to prosecute the Appeal since February 21, 2018 beyond the 12 months statutory period. Further that the delay is inordinate and inexcusable hence the pendency Appeal is an abuse of the court process. Further that the Applicant continues to suffer prejudice due to the delay in prosecution of the Appeal since he has not executed the award by the trial court.

5. The Application is opposed by the respondent who filed the Replying Affidavits of Kelvin Ngure and Allan Odongo sworn on 7th July 2021 and May 15, 2019 respectively. It is stated that the Application is misconceived and premised on misapprehension of facts and law hence should be dismissed. It is further stated that the Respondent has written to the Executive Officer requesting for certified proceedings which have elicited non response hence the delay.

6. Further that the Respondent is now ready to prosecute the Appeal since he has already prepared and filed the record of appeal. It is contended that the delay is not so inordinate to occasion any prejudice to the Respondent.

7. The Respondent contends that the Applicant ought to have sought directions under section 79B of the Civil Procedure Act before moving this court under Order 42 Rule 35 of the Civil Procedure Rules hence the prayers sought are untenable. Further that Order 42 Rule 35 (2) is couched in mandatory terms and only the registrar can list an appeal before a judge for dismissal without directions under section 79B hence the instant Application is usurping the powers of the deputy registrar and as such, it is premature and should be dismissed.

8. The Respondent prays that the Appeal should not be dismissed because the delay has been occasioned by reasons beyond them being that the appeal is yet to be admitted in accordance with Section 79B and that the trial court record has not been availed to the court. The Respondent implores this court not to dismiss the Appeal but give it a chance as they believe they have an arguable one with chances of success.

9. I have considered the instant Application, the Affidavits in support and against, together with the rival written submissions by the respective parties herein.

10. Dismissal of an appeal is provided for under Order 42 Rule 35 of the Civil Procedure Rules. Order 42 Rule 35(1) of the Civil Procedure Rulesprovides: -“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.”.

11. Order 42 Rule 35(2) of the Civil Procedure Rules on the other hand 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”.

12. The Respondent contends that the Application is premature as directions had not been given in this appeal as required by law. As a general rule, appeals cannot be dismissed under Order 42 Rule 35 (1) unless directions have been given under Order 42 Rule 11 of the Civil Procedure Rules.

13. I am persuaded by Hon. Justice J. Kamau in Pinpoint Solutions Limited & another v Lucy Waithegeni Wanderi (as the Legal Administrator of the Estate of James Nyanga Muchangi) [2020] eKLR where the Learned Judge 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…”

14. From the foregoing, I am inclined to agree with Respondent herein that the instant Application is premature for want of directions. This court is however not barred by lack of directions from dismissing an appeal where the Appellant has taken his sweet time not to trigger directions and when such application comes, he pleads the defence of no directions.

15. Order 42 Rule 11 of the Civil Procedure Rules, 2010 provides as follows:Upon filing of the appeal the appellant shall within thirty days, cause the matter to be listed before a judge for directions under section 79B of the Act

16. Similarly, 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…….”

17. In the case of Protein & Fruits Processors Limited & another v Diamond Trust Bank Kenya Limited [2015] eKLR, Civil Appeal 9 of 2007 the court observed that;“Three years later the applicant is seeking dismissal of the appeal. It is not disputed that directions have not been given in this appeal, in my view the appeal cannot therefore be dismissed under Rule 35 (1) since the appeal has not be placed before the judge for direction. As it is, the appeal is incomplete and the Appellants have not furnished the court with the record of appeal. The only alternative the applicant is left with is under Rule 35(2) which requires the Deputy Registrar to list the appeal for dismissal by a Judge. In the current application the applicant is seeking an order that the Deputy Registrar be directed to list the appeal for dismissal before a judge in chamber. I have no reasons not to grant the prayer, the appeal hearing has been pending in court for six years and it is only fair if the matter can be finalised. In the circumstances of this matter I will not order the Deputy Registrar to place the file before a judge for dismissal; instead I will dismiss the appeal. This court has the inherent discretion to do so under Section 3A, to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process. The court is also enjoined under Article 159(2) b of the Constitution to do justice without any delay.”

18. It is clear then that this Application is properly before this court and the prayer by the Applicant that the Deputy Registrar be directed to place the file before a judge for dismissal is valid and can be considered.

19. The power to dismiss a suit is discretionary which discretion should be exercised judiciously. This court is called upon to look at the amount of delay and whether justice can still be served despite the delay. The Respondent claims that the delay was occasioned by the court not providing certified copies of the proceedings to enable him file a record of appeal. A letter dated July 17, 2018 written to the Executive Officer to provide the said proceedings is attached. After this letter, the Appellant has done nothing to expedite the determination of this matter. This delay is indeed prolonged. The Applicant herein has been prejudiced by the delay.

20. For the interest of justice, I decline to dismiss the Appeal and order as follows;i.The appellant to file the Record of Appeal within 21 days from the date of this ruling.ii.Thereafter, the appeal to be listed for directions within 15 days after filing of the Record of Appeal.iii.The appeal to be prosecuted within ninety (90) days from the date the directions shall be given.iv.The respondent/applicant is awarded throw away costs assessed at Kshs. 15,000/= to be paid within 14 days from the date of this rulingv.Costs to the Respondent in the Appeal

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. J. K. SERGONJUDGEIn the presence of:………………………………. for the 1st Appellant……………………………….. for the 2nd Appellant………………………………. for the Respondent