[2022] KEHC 1607 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 421 OF 2018

MARYANNE FITZGERALD...........................................................................APPELLANT

-VERSUS-

MUGANDA WASULWA T/A KEYSIAN AUCTIONEERS......................RESPONDENT

RULING

1. The respondent/applicant in this instance has brought the Notice of Motion dated 23rd August 2021 which is supported by the grounds set out in its body and the facts deponed in the supporting affidavit. The applicant sought for an order to the effect that the appellant’s/respondent’s appeal be dismissed for want of prosecution with costs.

2. The appellant/respondent opposed the Motion by filing the replying affidavit sworn by his advocate, William Mugu on 25th October 2021.

3. When the Motion came up for interparties hearing before the court on 27th October, 2021 the parties were directed to file and exchange written submissions. I have considered the grounds set out on the face of the motion dated 8th June 2018 and the facts deponed in the rival affidavits.

4. The sole issue for determination before this court is whether the appeal filed by the Appellants is ripe for dismissal.

5. In his supporting affidavit, Muganda Wasulwa stated that the appellant has not made any efforts to prosecute the appeal for over three (3) years since filing it on 7th September, 2018. She has clearly lost interest in her appeal, as she brought it ostensibly as a means of postponing the respondent's enjoyment of the judgment's benefits.

6. The above averments were echoed in the submissions of the respondent/applicant, that there has been inordinate delay beyond the one year within which the Appellant was required to have the Appeal prosecuted. It was further stated that the evidence by the Appellant is not enough to justify the inordinate delay in prosecuting the Appeal, to support his argument, the applicant cited the case of Charles Macharia Maina v Jane Wanjiku Ndungu (2018) eKLRwhere the court held inter alia that:

“……..However, those letters were never received by the court registry at Nakuru as they do not bear the court stamp. Save for the letter dated 5/2/2018 which bears the court stamp of Nakuru High Court on 16/2/2018. However the said letter was written to Nakuru High Court after this application had been filed. The said letter did not refer to any earlier communication sent Nakuru High Court in regard to the lower court proceedings or file. There is no evidence to prove that the respondent sought the lower court file from Nakuru High Court for purposes of preparing the record of appeal or that he did anything towards prosecuting of this appeal. It seems the respondent was jolted to action upon the filing of this application, seeking dismissal of the appeal. In my view, the delay in prosecuting this appeal is inexcusable.”

7. In response, William Mugu stated inter alia, that that upon filing the memorandum of appeal, the Appellant/Respondent through her advocate wrote three letters to the Executive Officer to requesting for certified copies of the typed proceedings, judgment and decree to enable them compile, file and serve the record of appeal, to no avail.

8. The deponent is therefore of the view that the delay in filling the record of Appeal in this matter has been occasioned by the lack of the typed copy of the proceedings being availed to her by the lower court owing to missing court file and not because of indolence on the part of the Appellant herein or her Advocates on record.

9. The deponent further stated that the appellant/respondent is ready to file the Record of Appeal without the typed proceedings and upon leave being granted this court to file a supplementary record of Appeal to include the typed proceedings once she receives the same from the lower court.

10. It was the assertion of the deponent that the appellant/ respondent is desirous of proceeding with this Appeal and in the interest of justice that she be allowed to proceed with the same.

11. In her submissions, the appellant/Rrespondent’s humble prayer is that this Honourable Court does extend the time for filing the said record of Appeal and deem the filed record of Appeal and the Supplementary Record of Appeal as duly filed and admitted. The Appellant cited Order 50, Rule 6 of the Civil Procedure Rules states as follows:

“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise”

12. She further cited Section 95 of the Civil Procedure Act, Cap

21 states as follows:

“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”

13. Order 42, Rule 35 of the Civil Procedure Rules, 2010 provides for the circumstances and manner of dismissal of an appeal as follows:

“(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.”

14. From the record, it is apparent that the respondents filed their memorandum of appeal on 7th September, 2018.

15. The record shows that subsequently, the firm of W. G Wambugu & Company Advocates sent correspondences to the Chief Magistrate’s Court requesting for the certified copies of the typed proceedings and judgment/decree. It is apparent that those correspondences did not elicit any response.

16. This position supports the explanation given by the respondents for not compiling and filing the record of appeal and which explanation I find to be reasonable in the circumstances.

17. Following from the foregoing, it is apparent that directions are yet to be given in respect to the appeal and consequently, the appeal is yet to be set down for hearing. It therefore follows that the appeal cannot be deemed to be ripe for dismissal under the provisions of Order 42, Rule 35 (1) (supra).

18. There is also nothing to indicate that the Deputy Registrar has since listed the appeal before a judge for dismissal pursuant to the provisions of Order 42, Rule 35(2) (supra).

19. More importantly, I have established from the record that the lower court file has not been made available to this court which therefore means that it would not have been possible in any event for the appeal to be admitted and/or set down for directions in absence of the file.

20. In the premises, I find the Motion to be premature and the same is struck out with each party bearing their own costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022.

.........................

J. K. SERGON

JUDGE

In the presence of:

......................................for the Appellant

...................................for the Respondent