[2022] KEHC 492 (KLR)

Milimani Holdings Limited v Nyamosi (Civil Appeal 113 of 2017) [2022] KEHC 492 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 492 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 113 of 2017

TM Matheka, J

May 19, 2022

Between

Milimani Holdings Limited

Applicant

and

Julius Oyogo Nyamosi

Respondent

Ruling

1. What is before me is the Notice of Motion dated 18th October 2021, brought under Section 1A,1B and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya, Order 42 Rule 35 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law.

2. The application seeks the following orders:1. Spent2. Spent3. That this Honourable Court be pleased to set aside the orders issued on 21st May 2021 dismissing the appeal for want of prosecution together with all consequential orders;4. That the appeal herein be reinstated and be admitted for hearing and determination on merit and directions be issued in that respect,5. Thatcosts of this Application be provided for.

3. The application was provoked by the order of this court made on 21st May 2021 dismissing the appeal for want of prosecution. On that day the matter was listed in the dismissals list. There was no appearance by either the appellant nor respondent.

4. In the Supporting Affidavit sworn by Kisilah Daniel Gor Advocate on 18th October 2021 he set out the history of the matter. That the Subordinate Court’s Judgment was delivered on the 15th August 2017 and the Memorandum of Appeal filed on the 7th September 2017. The Record of Appeal was filed and served on the 3rd December 2019. Thereafter he wrote letters to the Deputy Registrar seeking confirmation as to whether or not the appeal had been admitted to enable them fix the same for directions. That these letters were never responded to only for them to later find out that the appeal had been dismissed for want of prosecution.

5. That on the 13th September 2017 the appellant had sought and was granted orders for stay of execution by the subordinate court pending the hearing and determination of the appeal on condition that the appellant deposit Kshs. 220,000/= in a joint interest earning account of which he complied.

6. That the Covid Pandemic made it difficult to obtain certain services from the court. After waiting for responses from the Deputy Registrar in vain and when they were able to peruse the court file they established unfortunately that this appeal was dismissed for want of prosecution; that the notice that was intended to be served upon the parties therein seemed not to have been served upon them, and it was evident that no notice to show cause had been served upon them.

7. That the occasion for dismissal of the appeal for want of prosecution had not arisen and its dismissal was clearly premature and most certainly inadvertent

8. The application is opposed through the affidavit of the respondent Julius Oyogo Nyamosi sworn on 3rd December 2021.

9. He took the position that the appellant upon filing the appeal had not taken any steps to prosecute the appeal and the court had proceeded rightfully, to dismiss it suo motu. That the only thing the applicant had done was to write the letter dated 10th February 2020 as the rest of the correspondences by the applicant are from August 2021 to October 2021 or thereabout long after this appeal was dismissed.

10. That the allegation that the pandemic made court services inaccessible is misleading as court services were rendered virtually.

11. The parties took directions to canvass the appeal by way of written submissions.

Applicant’s Written Submissions 12. The applicants submitted on two issues1. Whether or not the instant appeal was ripe for dismissal for want of prosecution.

13. The Applicant reiterated that their efforts to inquire about the status of the appeal and to have the matter placed before the trial court for perusal and formal admission from the Deputy Registrar were rendered futile as their correspondences never elicited any response.

14. They urged the court to find that an appeal which has not been admitted to hearing and directions is not ripe for dismissal in accordance with Order 42 rule 35 (2) of the Civil Procedure Rules 2010. For this proposition the applicant relied on the cases of Jurgen Paul Flash vs Jane Akoth Flash [2014] eKLR, Kirinyaga General Machinery vs Hezekiel Mureithi Ireri [2007] eKLR & Richard Ngetich & Another Vs. Francis Vozena Kidiga [2014] eKLR.

15. The appellant submitted that the issuance of a notice is paramount before an appeal is considered for dismissal.2. Whether or not the appeal ought to be reinstated.

16. The Appellant citing Articles 48 and 50(1) of the Constitution submitted that he will suffer immensely if the Appeal is not reinstated.

17. They urged this court to reinstate the appeal.

Respondent’s Submissions 18. The respondents filed their Submissions on 14th January 2022.

19. The respondents submitted on the following issues: -A. Whether the delay to prosecute the appeal was prolonged and inexcusable.

20. The respondent submitted that since the appeal was filed on 3rd December 2019, the Appellant took no steps to fix this matter for directions save for a correspondence dated 10th February 2020.

21. He argued that courts have inherent discretion to dismiss an appeal for want of prosecution under section 3A of the Civil Procedure Act and to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process.

22. He submitted that the delay in prosecuting the appeal was prolonged and inexcusable. He relied on the case Lawrence Kamugune And Another vs Stephen Mwangi Mugo [2019] eKLR where the court opined that;“the legal basis for dismissal of suits for want of prosecution is the requirement of expediency in the prosecution of civil suits and can be found in Article 159(2) (b) of the Constitution that justice shall not be delayed. Equally section 3A of the Civil Procedure Act gives the court unlimited power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court, under section 63 (e) of the same Civil Procedure Act, which is the statutory basis for all interlocutory applications, courts are assigned the unfettered discretion where it is so prescribed ,in order to salvage justice from defeat, to make such interlocutory orders as appear to the court to be just and convenient….”B. Whether justice can be done without the delay.

23. The respondent submitted that the Appellant slept on his right of appeal and woken by the dismissal of its appeal. That equity aids the vigilant and not the indolent and therefore the delay in prosecuting this appeal is inexcusable. He cited the case of Simon Wachira Nyaga vs Patrick Wamwirwa, Kerugoya Civil Appeal No.211 of 2013[2018] eKLR where Justice L.W. Gitari referred to the Court of Appeal decision in Cecilia Wanja Waweru vs Jackson Wainaina Muiruri & Another [2014], eKLR where the Court of Appeal held:-“There is no set rule as to what constitutes inordinate delay. Whether or not a party is guilty of inordinate delay depends on the circumstances of the case. We are of the considered view that the learned judge in considering the application, should have looked at the appellant’s conduct from the time the appeal was field up to the date the application for reinstatement was filed……..We have to ask ourselves whether the failure by the appellant to prosecute the appeal in the High Court and/or the delay in filling the application for reinstatement constitute an excusable mistake or was it meant to deliberately delay the cause of justice……. Why didn’t she set the appeal down for hearing for almost 14 years”? The reasonable explanation would be that the appellant had been indolent and had slept on her rights. She was only awakened from her slumber by the dismissal of the appeal.”

24. The respondent argued that service of notice under order 17 Rule 2(1) of the Civil Procedure Rules, 2010 is not mandatory and that the court may give notice of dismissal through its official website or through the cause list.

25. He stated that this Application lacks merit and urged the court to dismiss it with costs to him.

Issues for Determination 26. I have carefully considered the rival affidavits, submissions and authorities. The only issue for determination is whether or not this court should set aside the order issued on 21st May 2021 and reinstate the Appeal.

27. First, the respondent cited Order 17 rule (2) (1) of the Civil Procedure Rules, on notice to show cause with respect to suits. With respect the matter before me is the appellant’s appeal and the operative rules are found in order 42. This is because the Deputy Registrar had made the notice for dismissal under those provisions.

28. Order 42, Rule 35(2) 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.”

29. The Appeal was filed on the 7th September 2017 and it is yet to be admitted. The applicant inquired on the status of the appeal via the attached correspondences to court dated 10th February 2020 and 25th January 2021. These letters were not responded to prior to dismissal of their appeal on 21st May 2021.

30. I have perused the record and note that there was indeed a Notice to Show Cause by the Deputy Registrar dated 24th December 2019 wherein the matter was to be mentioned on the 4th May 2020. There is no evidence of service or reissuance of a fresh notice. Evidently there was an error on the part of the court in listing the matter for dismissal without issuing a fresh notice to the parties.

31. There is also evidence of correspondence by the appellant’s counsel to the court seeking directions as to whether the appeal had been admitted. There is no evidence of any response from the court.

32. I do find therefore that the application is merited, the orders of 21st May 2021 are set aside, the Appeal is reinstated.

33. The Deputy Registrar to avail the subordinate court ‘s file to enable the appellant to fix a mention date for directions.

34. The costs of this application should abide the outcome of the Appeal.

Dated, Signed and Delivered virtually this 19thMay 2022. Mumbua T MathekaJudgeCA EdnaSheth & Wathigo Advocates for the defendantsM/S Mboga G.G. & Co. Advocates for the respondent