[2024] KEHC 8213 (KLR)

Makori & 5 others (Sued as officials of New Sengera 2011 Self Help Group) v Onchoke & 8 others (Civil Appeal E517 of 2021) [2024] KEHC 8213 (KLR) (5 July 2024) (Ruling)

Neutral citation: [2024] KEHC 8213 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal E517 of 2021

PM Mulwa, J

July 5, 2024

Between

Nicodemus O Makori

1st Appellant

Cosmas Onyancha

2nd Appellant

Robert Kenyanya

3rd Appellant

Eric Makori

4th Appellant

Andrew O Maticha

5th Appellant

Dismas Oseko

6th Appellant

Sued as officials of New Sengera 2011 Self Help Group

and

Kepha O Onchoke

1st Respondent

Jephiter O Okemwa

2nd Respondent

Enock O Nyandwaro

3rd Respondent

Evans Nyambane

4th Respondent

Polycarp M Mogusu

5th Respondent

Jorame O Makori

6th Respondent

Chris M Mosoti

7th Respondent

John M Onchoke

8th Respondent

Obadiah O Okioma

9th Respondent

Ruling

1. By a Notice of Motion dated 25th September 2023, the 1st and 3rd appellants seek to review, vacate and/or set aside this Court’s order dated 21st July 2023 dismissing their appeal with costs for want of prosecution. The applicants have invoked the provisions of Order 45 Rule 1 and Order 51 of the Civil Procedure Rules as well as Sections 1A, 1B and 3A of the Civil Procedure Act.

2. The main ground founding the application is that there exists new and important matter or evidence which could not be produced by the appellants/applicants at the time the order was made. In the supporting affidavit sworn on 25th September 2023 by Robert Kenyanya, it is deposed that the appeal was dismissed for want of prosecution after the respondents challenged the manner in which the request for proceedings had been done; that the request for lower court proceedings had properly been made through the email at the time provided through a communique and therefore the appellants had taken the necessary steps towards prosecution of the appeal.

3. Further, the applicants contend that the respondents will suffer no prejudice if the orders sought are granted as they are at liberty to execute against some of the appellants.

4. The respondents, through Kepha O. Onchoke swore a replying affidavit on 3rd November 2023 and asserted that the application was an abuse of the court process and an afterthought and was meant to stall the taxation of the respondents’ ‘party to party’ bill of costs dated 23rd August 2023 which had been served upon the appellants. And that the applicants had not explained the delay in filing the application since 21st July 2023 when the orders sought to be reviewed were made.

5. Further, it was averred by the respondents that the applicants had not demonstrated any new matters of evidence that were not available to them at the time the impugned orders were made. And that the application does not meet the strict threshold for review under Order 45 of the Civil Procedure Rules.

Analysis and determination 6. The application was canvassed by way of written submissions which both parties filed, the applicants’ dated 3rd April 2024 and the respondents’ dated 11th April 2024 respectively.

7. I have considered the application, rival affidavits and submissions filed. There is no doubt that this Court has discretion to set aside an order dismissing an appeal for want of prosecution. The only issues for determination are whether the circumstances of this case warrant the exercise of that discretion and who should bear the costs of this application.

8. A brief background of this matter will suffice. The appellants filed the appeal herein vide a memorandum of appeal dated 21st August 2021 to challenge the ruling by Hon. Mbeja in Milimani CMCC No. 892 of 2012. On 7th June 2023 the Deputy Registrar issued a notice to show cause (NTSC) on why the appeal should not be dismissed for want of prosecution.

9. The appellants’ counsel filed an affidavit to purge the NTSC which was equally responded to by the respondents. Having heard counsel, this Court on 21st July 2023 found the appellants had failed to show cause and dismissed the appeal with costs. It is that order which led to the instant application.

10. Order 45 Rule 1 of the Civil Procedure Rules gives the High Court discretionary power to allow review on the three limbs therein stated, that is; an applicant may bring an application for review upon discovery of new and important matter; where there is a mistake or error on the face of the record or for any other sufficient reason.

11. The appellant’s application was hinged on the first ground, that there existed a new and important matter or evidence to warrant the Court not to order dismissal of the appellant’s suit for want of prosecution. The new evidence was the availability of a communique by the lower court on the email address to request for proceedings.

12. The court record is clear that before making the impugned order, the Court afforded the appellant opportunity to explain why the appeal should not be dismissed for want of prosecution. The explanation then, as it is even now, was that despite request the typed proceedings from the lower court were yet to be availed to the appellants to enable the preparation of the record of appeal.

13. Even with the instant application, the issue is not whether or not proceedings were requested for, but why it had taken the appellant close to two years to prosecute the appeal. The provision of a communique from the lower court to guide on the platform for requesting for proceedings is itself not a new matter or evidence to warrant the grant of the orders sought. Indeed, I agree with the submissions by counsel for the respondents that the filing of this application is yet another clear case of indolence on the part of the applicants. That they were woken up from a deep slumber upon service of the ‘party to party’ bill of costs dated 23rd August 2023, and notice of taxation dated 20th September 2023.

14. It must be clear that, even as I consider the prayer to set aside the impugned order, I am not persuaded that the appellants had the intention to prosecute the appeal herein. Litigation must come to an end.

15. In light of the foregoing, I find no merit in the appellants’ application dated 25th September 2023 and the same is dismissed. The costs hereof are awarded to the respondents.

Orders accordingly.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 5TH DAY OF JULY 2024. .....................P. MULWAJUDGEIn the presence of:Mr. Odek for appellants/applicantsMr. Webale for respondentsCourt Assistant: Carlos