[2023] KEHC 25519 (KLR)

Mburugu & another v Naliaka & another (Civil Appeal E043 of 2021) [2023] KEHC 25519 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25519 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal E043 of 2021

SM Mohochi, J

November 21, 2023

Between

Moses Mburugu

1st Appellant

George Karanja

2nd Appellant

and

Anna Naliaka & Bonface Bulimu

Respondent

Ruling

1. This Application dated December 21, 2022 is brought under section 1A, 1B, 3A and 79B of the Civil Procedure Act and orders 35 rules (1) and (2) and 42 rules (11) & (13) of the Civil Procedure Rules seeking for orders that this appeal be dismissed for want of prosecution.

2. The Respondent opposed the Application and filed a response by way of a sworn affidavit by Victor Nganga contending that the Application should be disallowed;

3. Parties hereby disposed of the application by way of written submissions. A summary of their rival submissions is as follows: -

Applicants/Respondent Submissions 4. It is the Applicant/Respondent's case that the Respondent/Appellant filed a memorandum of appeal way back on April 3, 2021 that the Respondent/Appellant has never filed his record of appeal and has since the filing of the memorandum of appeal, not made any deliberate attempts to have the matter listed for directions to-date.

5. It is his submission that the delay by the respondent/appellant in listing the appeal for directions is inordinate and inexcusable. It is their case that the respondent/appellant's inaction is calculated to ensure the applicant/respondent is denied the right to enjoy the fruits of a lawful judgment hence causing an injustice to them and for that reason, they stand to suffer prejudice unless the court intervenes.

6. The Applicant/Respondent submit that, order 42 rule 35 of the Civil Procedure Rules 2010 envisages scenarios for the dismissal of an appeal for want of prosecution. The first scenario is when an appellant just like in the present appeal fails to cause the matter to be listed for directions, under section 79B of the Civil Procedure Act as is envisaged in order 42 rule 11 of the Civil Procedure Rules.

7. The second scenario is that if after service of memorandum of appeal, the appeal would not have been down for hearing the registrar shall on notice to the parties list the appeal before the judge for dismissal, It is now not in dispute under order 42 rule 35 (2) of Civil Procedure Rule, it stipulates that:-“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 judge in chambers for dismissal".

8. The Applicant/Respondent submit that, in the case of Protein & Fruits Processors Limited & anor v Trust Bank Kenya Ltd (2015) eKLR the court held that, under order 2 rule 35 of the Civil Procedure Rules 2010, an appeal can be dismissed even if directions have not been given

9. It is his humble submission that, this court has a wide unfettered discretion to dismiss an appeal before discretions given. Whether there are sufficient grounds or reasons, the court can involve its inherent powers as bestowed on it by the Civil Procedure Act and the Rules and dismiss an appeal for want of prosecution even where directions have not been given. Odunga J in China Road & Bridge Corporation v John Kimenye Muteti (2019) eKLR held: -“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 notmoved the court to give the said directions cannot but must face censure from me 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."

10. Further reference was placed on Abraham Style Investment Company Ltd (2020) eKLR. And Mukhola Asitsa v Silver.

Respondent/Appellants 11. Reliance is placed on the case of Haron E Ongechi Nyaberi v British American lnsurance Co Ltd HCCA No 110 of 2001 eKLR (sic) where it was held that-“it will be the Appellant who shall really cause the appeal to be listed for directions before a judge by serving the Memorandum of Appeal and serving the Record of Appeal."

12. Applicant/Respondent also averred that the Appellant was granted leave to file an Appeal out of time over a year ago and had since that time not taken any steps to prosecute the Appeal herein.

13. The Applicant/Respondent submit that, on his part, the Respondent/Appellant argued that the Respondent/Appellant had not demonstrated the prejudice she would suffer if he was given more time to prosecute his Appeal. He asked this court to take judicial notice of the backlog of the typing of proceedings in the lower court. It was his argument that the application herein was premature and grossly misconceived.

14. He relied on the cases of Jurgen Paul Flach v Jane Akoth Flach (2014] eKLR wherein Kasango J held:“that before an appeal can be set down for dismissal for want of prosecution directions ought to have been given.”

15. The Applicant/Respondent, place reliance on the case of Allan Otieno Ofula v Gurdev Engineering & Construction Ltd [2015] eKLR where Aburili J observed that the right of appeal is (sic) constitutional right and in as much as there has been delay which has not been satisfactorily explained by the appellant", the court has to weigh the cost and prejudice a respondent is to suffer if the appeal was struck out before it was heard on merits. The Appellants are interested in pursuing this Appeal contrary to the assertions by the Respondent.

16. That indeed, the Appellants instituted this Appeal vide a Memorandum of Appeal dated 3rd April, 2021 against the Judgment of the Hon. Munyi, delivered on 24th March, 2021 in Nakuru CMCC 91 of 2019.

17. That, the Appellants complied with stay conditions by depositing Kshs. 255,788 in Court and paying an equal amount to the Respondent's Advocates.

18. That, the Appellants have not been able to retrieve the typed proceedings and have written letters to the Court seeking the same and which letters their Clerk visits the Registry with to follow up.

19. That, the Appellants contend that the delay, which is not inordinate, cannot be occasioned to them but to the lower Court which has not caused the proceedings to be typed.

20. That, in any event, there has been no delay occasioned so far in filing and serving the Record of Appeal and if there were, such delay is not as unreasonable and/or inordinate as to prejudice the Respondents and such delay can always be compensated by an award of damages and costs.

21. 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, under want of prosecution, directions ought to have been given as provided under order 42 rule 35 which is the governing provision in dismissal of Appeals for section 79B of the Civil Procedure Act. Since directions have not been given, the orders sought by the Respondent should not be entertained.

22. That, the present application is premature and intended to defeat the ends of justice.

23. That, under order 42 rule 35 (2), it is only the Registrar who can list an Appeal before a judge in chambers for dismissal if directions under Section 79B of the Civil Procedure Act have not been issued. I am also advised that since order 42 rule 35(2) is couched in mandatory terms, a party filing an Application like the present one is considered to be usurping the duties of the Deputy Registrar. In the circumstances, this Application is premature.

24. That, the Appellants thus contend that the Appeal ought not to be dismissed on the following grounds;

25. That, the Appellants are following up on proceedings and complied with stay by depositing security.

26. That, the court has unfettered discretion under Sections 1A and 3A of the Civil Procedure Act to ensure not only just and expeditious disposal of matters but also the inherent power to make such orders as may be necessary for ends of justice, and we implore the court to exercise such discretion to allow the Appellants prosecute their Appeal.

27. That, though the overriding objective is expeditious disposal of suits, the Constitution mandates that the same must be done justly, equitably and proportionately to the Appellant's right to a fair hearing.

28. That, the appellants believe that they have a viable Appeal which is against quantum as awarded by the trial court and as such stands to suffer serious prejudice in the unfortunate event that the Appeal is dismissed tinus denying the Appellant to have its Appeal determined on its merits and thus condemned to settle to the lower court award.

Issues for determination 29. After careful analysis, the main issue for determination is whether the appeal ought to be dismissed for want of prosecution.

The Law Whether the Appeal ought to be dismissed for want of prosecution. 30. Order 42 rule 35 (1) & (2) of the Civil Procedure Rules provides: -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.

31. Therefore, order 42 rule 35 envisages two scenarios for the dismissal of an appeal for want of prosecution. The first scenario is when an appellant fails to cause the matter to be listed for directions under section 79B of the Civil Procedure Act as is envisaged in order 42 rule 11 of the Civil Procedure Rules. The second scenario is that if after service of the memorandum of appeal, the appeal would not have been set down for hearing, the registrar shall on notice of the parties list the appeal before the judge for dismissal.

32. This principle has been enunciated in the case of Pinpoint Solutions Limited & Another v Lucy Waithegeni Wanderi (as the legal administrator of the Estate of James Nyanga Muchangi) [2020] eKLR where the court elaborated on the procedure relating to dismissal of appeals for want of prosecution, saying: -“1. 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 rule 13 of the Civil Procedure Rules, 2010. 2.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.”

33. Similarly, on the principles governing dismissal for want of prosecution, the court in Mwangi S. Kimenyi v Attorney General& another, Civil Suit Misc. No. 720 of 2009 held that: -“1. When the delay is prolonged and inexcusable, such that it would cause grave injustice to the one side or the other or to both, the court may in its discretion dismiss the act straight away. However, it should be understood that prolonged delay alone should not prevent the court from doing justice to all parties- the plaintiff, the defendant and any other third or interested party in the suit; lest justice should be placed too far away from the parties. In variably, what should matter to the court is to serve substantive justice through judicious exercise of discretion which is to be guided by the following issues;1)whether the delay has been intentional and contumelious;2)whether the delay or the conduct of the plaintiff amounts to an abuse of the court;3)whether the delay is inordinate and inexcusable;4)whether delay is one that gives rise to a substantial risk to a fair trial in that it is not possible to have a fair trial of issues in action or causes or likely to cause serious prejudice to the defendant; and5)what prejudice will the dismissal cause to the plaintiff. By this test, the court is not assisting the indolent, but rather it is serving the interest of justice, substantive justice on behalf of all the parties.”

34. The Respondent’s/Appellants did not also follow-up with the court to set down the Appeal for admission and directions.

35. Further, as discussed above, it would appear that an appeal cannot be dismissed for want of prosecution before directions are taken. However, a party is not allowed to file an appeal and then go to sleep. The court is persuaded by the case of Abraham Mukhola Asitsa v Silver Style Investment Company Limited [2020] eKLR where the court stated:“However, I am not persuaded that there is any justification for the party to file an appeal, and thereafter go to sleep. An appeal is not filed for the sake of it. It should not be left parked at the appeals registry for times on end, without any action being taken. I believe a party who files an appeal and goes to sleep and takes no action on it for a long time, cannot hide above the provisions and argue that since directions had not been taken then the appeal cannot be dismissed. An appeal should not be left to hang over the head of a respondent endlessly, where the appellant is unwilling to act on it. Justice demands that the same be resolved one way or the other. I believe dismissal of such stale appeals is one of the resolutions. There is no point of populating appeals registries with appeals that are not being prosecuted, yet the courts are being told that they cannot dismiss them before directions are taken. This creates unnecessary backlog. If parties are not moving their cases, the courts should dismiss them. There is no reason for them to clog the system. It is an untenable position. I believe there is inherent power to dismiss such appeals.”

36. This application for dismissal was filed in court on 22nd December, 2022 and served on the applicant on 11th January, 2023 but no replying affidavit was filed until four (4) months later. The memorandum of appeal was filed on 20th April, 2021 which was about a month after the judgment was delivered.

37. The Respondent’s/Appellants contends he has been following up on the typing of Record of Appeal without providing any evidence to back up the assertion. This contributed to delay of over two (2) year which led to the filing of this application. This is inexcusable, inordinate delay on the part of the Respondent’s/Appellants. It is unfortunate that this delay was not satisfactorily explained.

38. However, perusal of the memorandum of appeal reveals that, the Respondent’s/Appellants were dissatisfied with the judgment the grounds raised are weighty in nature and that Respondent’s/Appellants may suffer prejudice if this application is allowed. In my view, they may be given a chance to pursue their appeal with timelines of setting down the hearing to prevent further delay.

39. I am persuaded that the Appellants appeal should be dismissed with costs to the Respondent but I am invited to consider the provisions of article 50 of the Constitution. In the interest of Justice and equity I shall disallow the Application dated December 21, 2022.

40. Section 3A of the Civil Procedure Act enjoins the Court to issue orders that are necessary for the ends of justice to be met and to further prevent abuse of the court process.

41. I hereby disallow this Application and give the following orders/directions: -a.The Respondent’s/Appellants to file and serve a record of appeal within sixty (60) days of this Ruling;b.Thereafter, the Appeal to be listed for directions within fourteen (14) days after filing of the Record of Appeal.c.The Applicant/Respondent is awarded throw away costs assessed at Kshs. 10,000/= to be paid within thirty (30) days from the date of this Ruling.d.Failure to comply with (a) above, the Appeal shall stand dismissed;

It is hereby so ordered.

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAKURU ON THIS 21ST NOVEMBER 2023. ________________________MOHOCHI S.MJUDGE