[2017] KEHC 6534 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. 206OF 2014

MUSAU MUSEMBI..................................................APPELLANT

VERSUS

D M (Minor Suing through

his next friend Irene Mueni Muteti).................RESPONDENT

RULING

The Application

The Respondent seeks to have the Appeal filed herein by the Appellant dismissed with costs for want of prosecution, for reasons that the Appellant filed a Memorandum of Appeal on 26th September 2014 pursuant to the judgment delivered in Machakos CMCC No. 1010 of 2011, and it has been over one year since the said Memorandum of Appeal was filed yet the Appellant has not taken any steps to prosecute the appeal. Further, that the said failure to prosecute is in abuse of the process of Court and prejudicial to the Respondent.

These prayers and averments are in an application by way of a Notice of Motion dated 4th December 2015, and in the supporting affidavit sworn by the Respondent on the same date. The Respondent gave a history of the suit in the lower court which was instituted by way of a plaint dated 8th November 2011 and in which judgment was delivered on 5th September 2014, and reiterated that the inordinate delay by the Appellant is aimed at defeating the ends of justice.

The application was opposed by the in a replying affidavit sworn on 29th April 2016 by Sophie Chirchir, the Appellant’s Advocate, who stated that the Appellant’s lawyers have written to the Executive Officer of Machakos Magistrate’s Court for proceedings in the trial Court, and made several visits to and inquiries at the registry for the proceedings, but have not been availed the same and have been informed that the case file cannot be traced. She attached copies of letters written to the said Executive Officer.

Further, that due to the non-availability of the proceedings the Appellant has not been able to compile the bundle of appeal to facilitate the prosecution of the appeal, neither can the Appeal be admitted, and that the delay in prosecuting the appeal is due to factors beyond their control.

The Determination

I have read and carefully considered the pleadings and submissions filed. The issue for determination is whether the appeal herein should be dismissed for want of prosecution.

The Respondent’s learned counsel, Shem Kebongo Advocate filed written submissions dated 5th November 2016 , wherein he relied on Order 42 Rule 35(2) of the Civil Procedure Rules, and the decisions in Simon Kinyanjui Kariuki vs Francis Ngige Waweru (2016) eKLR and Lake Basin Development Authority vs Joseph Kipkoech Kurgat & Another(Suing as the Personal Representatives of the estate of Geoffey Koech) (2016) eKLR for the position that the Court in exercising is discretion to dismiss the appeal has to act judicially and fairly, and in a manner that balances the prejudice that will be caused to any of the parties.

Cherono & Co Advocates for the Appellant on the other hand filed submissions dated 20th January 2016 wherein they reiterated the averments in their pleadings, and relied on the decision in Leonard Njogu vs Barclays Bank of Kenya & Anor, (2014) e KLR to argue that the Respondent had not shown any aggravated prejudice they had suffered by the delay in prosecuting the appeal.

The applicable law as regards dismissal of an appeal for want of prosecution is Order 42 Rule 35 of the Civil Procedure Rules which provides 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.”

The processes of giving directions and service of memorandum of an appeal are provided for in Order 42 Rules 11, 12, and 13 of the same Rules, wherein it is provided as follows:

“11. Upon filing of the appeal the appellant shall within thirty days, cause the matter to be listed before a judge for directions under section 79B of the Act.

12. After the refusal of a judge to reject the appeal under section 79B of the Act, the registrar shall notify the appellant who shall serve the memorandum of appeal on every respondent within seven days of receipt of the notice from the registrar.

13. (1) On notice to the parties delivered not less than twenty-one days after the date of service of the memorandum of appeal the appellant shall cause the appeal to be listed for the giving of directions by a judge in chambers.”

In the present application, the Appellant claims that there has been no admissions of the appeal as he is yet to be furnished with the certified copies of typed proceedings of the trial court. The law requires the Appellant to list the appeal for directions within 30 days of filing of the same. There is no requirement for the filing of a record of appeal for such directions to be granted. In this regard the documents that are required when filing of an appeal under Order 42 Rules 1 and 2 of the Civil Procedure Rules are set out as follows:

(1) Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.

(2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.

2. Where no certified copy of the decree or order appealed against is filed with the memorandum of appeal, the appellant shall file such certified copy as soon as possible and in any event within such time as the court may order, and the court need not consider whether to reject the appeal summarily under section 79B of the Act until such certified copy is filed.

The requirements therefore under these rules for directions to be given under section 79B of the Civil Procedure Act is that the Appellants should have filed a memorandum of appeal to which should be attached a certified copy of the decree or order appealed against. The Appellants to this extent have therefore been indolent in listing the appeal herein for directions under section 79B of the Civil Procedure Act.

This finding notwithstanding, it is not disputed that directions have not been given in this appeal, and the appeal cannot therefore be dismissed pursuant to Order 42 Rule 35(1) of the Civil Procedure Rules. The appeal has also not been admitted to hearing, and since Order 42 Rule 12 of the Civil Procedure Rules provide that a memorandum of appeal shall be served after it has been admitted to hearing, this appeal is also therefore not amenable to dismissal under Order 42 Rule 35 (2).

I accordingly hereby decline to issue the orders prayed for by the Respondent in his Notice of Motion dated 4th December 2015 for the foregoing reasons. The costs of the Notice of Motion shall follow the appeal. This Court in addition directs the Appellants to file and serve their Record of Appeal within 60 days, after which this appeal shall be mentioned for direction as to its hearing.

Orders accordingly.

Dated, signed and delivered in open court at Machakos this 20th day of March 2017.

P. NYAMWEYA

JUDGE