[2023] KEHC 27436 (KLR)

Muli v Okinyeru & 2 others (Civil Appeal E32 of 2020) [2023] KEHC 27436 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27436 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E32 of 2020

DO Chepkwony, J

December 14, 2023

Between

Stephen Mutinda Muli

Appellant

and

Evans Ongondi Okinyeru

1st Respondent

Jared Samba Mosota

2nd Respondent

Omar Ali

3rd Respondent

(Being an Appeal against the Ruling of Hon. V.A Ogutu RM in Thika CMCC No. 47 of 2009 delivered on 26th November, 2020. )

Ruling

1. On 23rd January, 2009, the Appellant (then Plaintiff) filed the suit vide a Plaint dated 21st October, 2008 against the Respondent (then Defendants) before the trial court seeking general damages, special damages, costs and interest of the suit following a road traffic accident that had occurred on 31st September, 2008. The Respondents entered appearance vide a Memorandum of Appearance and filed Defence on 23rd February, 2009.

2. The Appellant then filed Chamber Summons Application on 29th June, 2010 seeking leave to amend its Plaint.

3. On 27th August, 2013, the Respondent filed a Notice of Motion Application seeking to have the Appellant’s suit dismissed for want of prosecution on the ground that no step had been taken in the matter in that regard for over one year. The trial court allowed the application which was unopposed on 8th November, 2013.

4. The Appellant then filed its Application on 16th October, 2018 seeking reinstatement of the suit which was opposed by the Respondents through a Replying Affidavit sworn by Nancy Buluma and Grounds of Opposition, both dated 3rd February, 2020.

5. The Trial court analysed the application, the responses and the Submissions filed and held that the application had been filed after six years and took it two years to set it down for hearing which showed a disinterest in the matter. The trial court found that the reasons for the delay having been given as the inability to take a date at the registry was unbelievable as there was no evidence of any efforts made to confirm a follow up on the same. The trial court then held that the matter had been pending in court for many years hence the court could not exercise its discretion in favour of the Appellant. The court adopted the equity maxim that ‘Equity aids the vigilant and not the indolent’ and proceeded to dismiss the application.

6. Being aggrieved, the Appellant filed the present Appeal seeking that:-a.This appeal be allowed.b.This Honourable Court sets aside the Decree and Judgement of the subordinate Court and substitutes it with an order dismissing the 1st Respondent’s claim against the Appellants entirely with costs and/or enters Judgment against the 2nd Respondent.c.That without prejudice to prayer No.(b) above this Honourable court re-assesses and reduces the apportionment on liability and award on quantum.d.The costs of this appeal and that of the trial court be awarded to the Appellants.

7. The Appeal was admitted for hearing on 7th February, 2022 and parties were directed to canvass the same by way of written submissions. The Appellant filed his written submissions on 30th March, 2023. The Respondents had not filed theirs at the time of writing this Judgment.

Analysis and Determination. 8. This being a first appeal, this court has a duty to re-analyse, and re-evaluate the evidence that was adduced before the trial court afresh so as to reach an independent finding while bearing in mind that it did not have the privilege of the trial court at first instance. (See the case of Selle and Another –vs- Associated Motor Boat Company Ltd and others [1968] EA 123).

9. I have read the record before the trial court and the Appellant’s submissions in considering the grounds of appeal. It is trite law that the Appellate court can only interfere with the decision of the trial court if it establishes that it was based on wrong principles of law.

10. In the case of Mbogo & Another –vs- Shah [1968] EA, the court held that:-“A Court of Appeal should not interfere with the exercise of discretion of a Judge unless it is satisfied that he misdirected himself, in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case on a whole that the Judge was clearly wrong in the exercise of his discretion and as a result there has been misjustice.”

11. In this case the court notes that the suit arose from an accident that took place in the year 2018. The Plaintiff filed the suit on 23rd January 2009, and the Respondents entered appearance and filed defence on 23rd February. 2009. The Plaintiff did not take any steps until 2010 when it filed the application to amend its Plaint. After this, again the Plaintiff did not take any further step until the Respondents filed the application for dismissal of suit for want of prosecution on 8th November, 2013, which the Appellant did not respond to despite being served. The court considered this and dismissed the suit. The appellant took another six (6) years to file an application for reinstatement and then took two (2) years to set it down for hearing.

12. As correctly observed by the trial court, the Appellant’s conduct is that of a party who had no interest in having his appeal prosecuted and his intermittent actions in the same are clearly a way of buying time and denying the Respondents from enjoying the fruits of their Judgment.

13. In the case of Ivita –vs- Kyumbu [1984] KLR 441 (Chesoni J), the court analysed the factors to be considered in application for re-instatement of a suit as follows:-“The test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay. Justice is justice to both the Plaintiff and Defendant; so both parties to the suit must be considered and the position of the judge too,because it is no easy task for the documents, and, or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy the court that it will be prejudiced by the delay or even that the plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus, even if delay is prolonged if the court is satisfied with the plaintiff's excuse for the delay, the action will not be dismissed, but it will be ordered that it be set down for hearing at the earliest available time.”

14. Clearly, in examining the reasons the Applicant has given for the delay in having the suit prosecuted, this court finds the explanation unsatisfactory. In the circumstances, the trial court did not err in its ruling in finding the Appellant an indolent litigant who cannot be aided by a court of equity.

15. In the resultant, the court finds that the Appeal lacks merit and the same is dismissed with costs to the Respondent.

It is so ordered.

RULING DELIVERED, DATED AND SIGNED AT KIAMBU THIS 14THDAY OF DECEMBER , 2023. D. O. CHEPKWONYJUDGEIn the presence of:No appearance for or by either partyCourt Assistant - Martin