[2009] KEHC 3137 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII

Civil Appeal 225 of 2006

MUSTAFA ADEN GEDI ……………………..……….….. APPELLANT

VERSUS

MOLEL ARAP KIRUI (Suing as Personal

Representative of GILBERT KOSGEI)……..……… RESPONDENT

RULING

The judgment being appealed from was delivered by the Chief Magistrate, Kisii on 31/6/06. Memorandum of Appeal was filed before this court on 4/9/06. It was without certified copy of decree, and this is one of the issues the Respondent has taken up. Under Order XL1 rule 1A of the Civil Procedure Rules.

“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.”

It is clear from the law that the responsibility to file Memorandum of Appeal together with a certified copy of decree belongs to the Appellant. The law recognizes the fact that there will be occasions when the decree is not available immediately. On such occasions the Memorandum will be filed but “as soon as possible” the decree should follow. If the Appellant is not able to file the decree soon after the Memorandum he should go to court to explain for an appropriate order as to filing to be made.

In this case the decree was not filed until it was included into the Record of Appeal which was itself filed on 16/3/09. Indeed the Supporting Affidavit to this application depones that the decree has to date not been filed. The Replying Affidavit by Appellant indicates the decree has been filed. The Supplementary Affidavit by Appellant annexes a copy of the decree. It is stamped 27/4/09 which is the date of the Affidavit. I have seen a copy of decree inserted in this file. It is not stamped by the High Court Registry or paid for as evidence of filing. In short, no decree has so far been filed. Even if it is taken that it was filed along with the Record of Appeal (because the Record houses it), that was done on 16/3/09. That is over 2½ years after the Memorandum of Appeal was filed. That cannot be said to be “as soon as possible”.

No effort was made by the Respondent to seek the court’s indulgence or assistance in the matter. The explanation by the Appellant for the delay was that the subordinate court delayed in preparing its record; that as soon as the Memorandum of Appeal was filed the Deputy Registrar wrote to the subordinate court for its record but that there was delay in processing it. No evidence has been exhibited to show that the Appellant wrote to the subordinate court, or took any other step in that regard, to get the decree or copy of proceedings. There is no Certificate of Delay obtained from the subordinate court. In fact, I find, the explanation is not only unacceptable but is also not truthful. This is because the decree that was sneaked is clear that it was issued on 7/9/06, less than three months after the judgment. This was 3 days after the filing of the Appeal! The decree was always available to the Appellant but was not filed.

Order XL1 rule 31 of the Civil Procedure Rules provides for the dismissal of appeal for want of prosecution, but the rule is applicable to appeals which have already been admitted to hearing under section 79B of the Civil Procedure Act and directions have been given. In this case, the appeal has not yet been admitted to hearing, leave alone directions being given. The Respondent was alive to this, because this Notice of Motion application for dismissal of the Appeal for want of prosecution has been brought under section 3A of the Civil Procedure Act. The Respondent seeks that the court invokes its inherent powers:

“to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

The High Court in Adnan Karama Petroleum Limited vs. National Environmental Authority Nairobi HC Civil Appeal No.878 of 2005 at Nairobi, Eunice Njeri Kimani v. Muiruri Kariuki HC Civil Appeal No.179 of 2003 at Nakuru and Sokoro Plywoods Ltd v Alfred Omutoko Ndengu HC Civil Appeal No.20 of 2004 at Nauru appears to have settled that a party can rely on section 3A of the Civil Procedure Act to seek dismissal of appeal for want of prosecution where there has been no admission to hearing or directions taken. The underlying principle is that appeals are filed to be prosecuted and not to undermine the judgment that a Respondent has in his favour in the subordinate court. The Court of Appeal in Abdul and Another v. Home & Overseas Insurance Co. Ltd [1971] EA 564 cited with approval the following statement in another appeal decision in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696, 699.

“I am of the opinion that the provisions of the Civil Procedure Rules for the dismissal of suits for want of prosecution do not purport to be exclusive, and do not fetter the court’s inherent jurisdiction to dismiss suits in circumstances not falling directly within those provisions, if it is necessary to do so to prevent injustice or abuse of the process of the court.”

In the instant case, the Respondent’s contention is that the delay by the Appellant in prosecuting the Appeal is inordinate and inexcusable. He argues that the delay has prejudiced him. This is because the Appellant obtained a stay of execution pending the hearing and determination of the Appeal and subsequent to it the decretal sum of Kshs.1,000,000/=, or so, has been deposited in joint account. This was an traffic injury claim. He cannot access the damages awarded to him.

I have considered the application and the submissions by M/S. Obaga for the Respondent and Mr. Odhiambo for the Appellant. I find the Respondent has demonstrated that the Appellant is not serious with this appeal and that the appeal is an abuse of the process of the court. I dismiss the appeal with costs for want of prosecution. To avoid doubt, the stay granted herein is discharged.

Dated and Delivered at Kisii this 18th day of June, 2009

A.O. MUCHELULE

JUDGE

18/6/2009

Before A. O. Muchelule Judge.

Mongare cc.

Mr. Odhiambo for Appellant

M/S. Obaga present.

Court: Ruling in open Court.

A.O. MUCHELULE

JUDGE