[2022] KEHC 3353 (KLR)

Mjomba v LN (Suing as next friend and mother of SE Minor) & 2 others (Civil Appeal 55 of 2018) [2022] KEHC 3353 (KLR) (11 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3353 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal 55 of 2018

SN Riechi, J

May 11, 2022

Between

Frances Mwashigadi Mjomba

Applicant

and

LN (Suing as next friend and mother of SE Minor)

1st Respondent

Diamond Trust Bank

2nd Respondent

Kuenhe Nagel

3rd Respondent

(Being an appeal from the judgement and Decree of Hon. C. A. S. Mutai S. P.M in Bungoma CMCC No. 280/2016 delivered on 3/9/2018)

Ruling

1. In their application dated 15/12/2021, the applicants seek;1. Spent.2. Spent.3. That the orders made by this court on 8/9/2021 and all consequential orders be set aside, the appeal be reinstated and fixed for hearing to be determined on its merits.4. Costs of the application.

2. The application is precipitated on the grounds in the face of the motion and supported by the affidavit of Richard Kamau Advocate. He depones that this court on its own motion dismissed the appeal on 8/9/2021 despite not being served with the notice to show cause why the appeal should not be dismissed for want of prosecution but served only on the respondent’s counsel. He depones that the applicants are desirous of prosecuting the appeal to be determined on its merits, the delay in filing the record of appeal was occasioned by a delay in securing certified copies of the proceedings thus there was no inordinate delay to warrant the dismissal. He depones that the applicants are committed to comply with the terms given for the reinstatement.

3. Counsel depones that the applicants learnt of the dismissal on the December 15, 2021 when the auctioneers moved to attach their properties and are apprehensive that if the orders sought are not granted, their properties are up for sale.

4. The application is opposed through a replying affidavit sworn on 18/12/2021 by Mukisu Mkoyondali, the respondent’s counsel who depones that 3 years have since lapsed since the appeal was filed and the applicants have not compiled and filed the record of appeal and is therefore apparent that the appellants have lost interest in the appeal.

5. Counsel depones that under Order 35 Rule 2 of the Civil Procedure Rules, the court has discretion to dismiss an appeal upon the lapse of 1 year. That the applicant has made no effort to demonstrate inability to secure proceedings. That the inordinate delay in determining the appeal has occasioned suffering to the respondent who lost a right lower limb and the applicant cannot therefore be heard that none of the parties has suffered any prejudice.

6. The application was canvassed by way of written submissions. Both parties complied and the same is on record and have been considered.

7. The sole issue for determination is whether the applicant has met the threshold for a grant of the orders sought. It is trite law that matters of reinstatement of a suit is a discretionary exercise which ought to be exercised judiciously.

8. The reason advanced by the applicant is that counsel on record was not served with the notice to show cause and secondly that the preparation of the proceedings in the lower court took inordinately long and therefore they could not prepare the record of appeal. It is true, as respondent’s counsel pointed out that the applicant has not demonstrated the efforts it put in place to secure the proceedings. No evidence such as, a letter requesting the same has been exhibited.

9. The dictates of justice demands that each party be heard. There is need to balance the rights of either party to the dispute such that justice is not only served but seen to be done. It is no doubt the respondent suffered and is desirous of enjoying the fruits of judgement while the applicant is entitled to exhaust the appellate process accorded by the law. The appeal having been filed in 2018 and as at December, 2021, there was not much progress from the applicant to have the matter set down for hearing.

10. Gikonyo J in John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) (2015) eKLR while dealing with an application for reinstatement stated;The fundamental principles of justice are enshrined in the entire Constitution and specifically in article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court. These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need not multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such act are comparable only to the proverbial ‘’Sword of the Damocles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a court of law should consider whether there are reasonable grounds to reinstate such suit-of course after considering the prejudice that the defendant would suffer if the suit was reinstated against the prejudice the Plaintiff will suffer if the suit is not reinstated.

11. I have considered the application and find that justice would be served in reinstating the appeal on stringent conditions. Accordingly, the order dismissing the appeal is hereby set aside and the appellant is hereby directed to compile, file and serve the record of appeal within 30 days from the date of today. Thereafter, the appeal be set down for hearing within 21 days after service of the record, in default, the appeal will stand dismissed. Costs of the application shall abide the outcome of the appeal.

DATED AT BUNGOMA THIS 11TH DAY OF MAY, 2022. S. N. RIECHIJUDGE