[2023] KEHC 27398 (KLR)

Mwaniki v Kamunya & 2 others (Civil Appeal 43 of 2020) [2023] KEHC 27398 (KLR) (5 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27398 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 43 of 2020

SM Mohochi, J

December 5, 2023

Between

Lucy Njeri Mwaniki

Applicant

and

Wanjohi Kamunya

1st Respondent

Gulzar Ahmed Motors Ltd

2nd Respondent

Samson Omani

3rd Respondent

Ruling

1. Before the Court for determination is the Notice of Motion dated 6th June, 2022. It was filed herein 17th August 2021 by the Respondent /Applicants pursuant to sections 1A, 1B, 3A and 79B of the Civil Procedure Act and Order 45 Rule 6, Order 42 Rule 11, 13, and 35 (1) (2) of the Civil Procedure Rules and all enabling provisions of the Law, for the following orders:i.Spentii.That the Court be Pleased to dismiss the Appellant’s Appeal for want of prosecution.iii.That costs of the Application be in the cause.

2. The application is premised on the grounds on the face of the Application and the supporting Affidavit of Lucy Njeri Mwaniki, sworn on 6th June 2022. She deponed that that this memorandum of appeal was filed on 7th March, 2020 and that ever since the Respondents/Appellants have not made any deliberate effort(s) to have the matter listed for directions which to her is deliberate, inexcusable and inordinate.

3. Lucy Njeri Mwaniki contends that she is highly prejudiced by the deliberate action by the Respondents/Appellants.

4. The Court further issued “a notice to show cause why the Appeal should not be dismissed” dated 22nd July 2022.

5. The Application was opposed by the Respondents/Appellants and a Replying Affidavit to that effect, sworn by Lawrence Njuguna filed 12th October, 2022. He deposed that application is misconceived that they had deposited a sum of Kshs 554, 528/- in the Applicant/Respondent’s Advocates Accounts and a similar amount in court as its commitment towards prosecuting its Appeal.

6. He averred that the delay cannot be attributed to the Respondents/Appellants as to prejudice the Applicant/Respondent and such delay can be compensated by way of costs. That should the orders sought not granted the Respondents/Appellants stand to suffer prejudice irreparable loss. He averred that the constitution under Article 48 guarantees access to justice and under Article 159 (2) (d) enjoins the court to administer justice without undue regard to procedural technicalities; that the Respondents/Appellants are keen on prosecuting the appeal; and that they should be allowed to obtain the certified copies of proceedings and judgment to be able to prosecute their Appeal.

7. That judgement was delivered on 14th February, 2020 in her favour and since the Appeal was filed on 7th March 2020, the Respondents/Appellant’s have never taken any steps to have the same set down for directions or prosecute the Appeal.

8. That the letters annexed by the Respondents/Appellants show that they are guilty of lethargy since they only followed up on the Appeal in the year 2020 as there was no follow-up done in the subsequent years. That the delay was inordinate without reasonable explanation.

9. The Application was disposed of by way of written submissions. The Applicant/Respondent filed her written submissions on 8th August, 2023. While the Respondents/Appellant’s filed their written submissions on the 20th September 2023.

Applicant/Respondent’s Case 10. The Applicant /Respondent submit that, Order 42 Rule 35 of the Civil Procedure Rules 2010 envisages scenarios for the dismissal of an appeal for want of prosecution. The first scenario is when an appellant just like in the present appeal fails to cause the matter to be listed for directions, under Section 79 B of the Civil Procedure Act as is envisaged in Order 42 Rule 11 of the Civil Procedure Rules.

11. The second scenario is that, if after service of memorandum of appeal, the appeal would not have been set down for hearing the registrar shall on notice to the parties list the appeal before the judge for dismissal, It is now not in dispute under Order 42 Rule 35 (2) of Civil Procedure Rules, it stipulates that :“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 judge in chambers for dismissal".

12. Reliance is placed in the case of Protein & Fruits Processors Limited & Anor vs Trust Bank Kenya Ltd (2015)eKLR the court held that under order 2 Rule 35 of the Civil Procedure Rules 2010, an appeal can be dismissed even if directions have not been given. It is the Applicant /Respondent humble submission that this court has a wide unfettered discretion to dismiss an appeal before discretions given. Whether there are sufficient grounds or reasons, the court can involve its inherent powers as bestowed on it by the Civil Procedure Act and the Rules and dismiss an appeal for want of prosecution even where directions have not been given. Odunga J in China Road & Bridge Corporation Vs John Kimenye Muteti (2019) eKLR held:-“It is therefore clear that it is upon the appellant to trigger the process of the giving of directions and an appellant who sits on his/her laurels and when confronted with an application to dismiss the suit contends that no directions have been given when he has not moved the court to give the said directions cannot but must face censure from the court. To contend that an application for dismissal of an appeal is premature for failure to give directions when the appellant himself has not moved the court to give directions to my mind cannot be taken seriously where the delay is contumelious. Nothing bars the court from dismissing an appeal even where no directions have been given."

13. Also in support of her argument is the case of Abraham Mukhola Asitsa Vs Silver Style Investment Company Ltd (2020) eKLR.

14. The Applicant/Respondent Submits that, where the appellant files an appeal and goes into slumber, this court can invoke its inherent powers under Section 3A to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process and further the provisions of Article 159 (2) (b) of the Constitution to do justice without undue delay. This is notwithstanding that directions have not been given.

Respondent’s Case 15. The Respondent/Appellant submits that, the judgment that was entered in Nakuru CMCC 1556 of 2018 on 14th February 2020 by Hon. F. Munyi and the instant Appeal was instituted through a Memorandum of Appeal dated 7th March 2020.

16. That the Respondent/Appellant have requested for certified copies of the proceedings, judgement and decree but the registry has failed and/or refused to supply the aforementioned documents for purposes of preparing their record of appeal.

17. That the request for proceedings by the Respondents/Appellants to enable them prepare the Record of Appeal shows that they have been and are keen and desirous to have this appeal heard and determined.That the Respondent/Appellant submissions are further enforced by the following legal provision. Article 50(1) of the Constitution of Kenya, 2010 to provides as follows:“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body."

18. The Respondents/Appellants further rely on Article 159 (2) (d) of the Constitution which state that, justice shall be administered without undue regard to technicalities"

19. The Respondents/Appellants also relies on the case of Grace Nieri Theuri v John Mburu Wainaina 2022| eKLR which bears very close resemblance with this case. The court in arriving at its decision, held as follows:“Notably, the procedure for rejection and/or admission of appeal and giving of directions is very well set out in the Civil Procedure Rules. However, this procedure does not seem to be strictly followed and differs from one court to another. In the Civil Division Milimani Law Courts, the Registrar issues the notice for admission and directions of appeal after the High Court receives the file and lower court proceedings. The appellant does not seem to have any role in fixing the appeal for directions as contemplated under Order 42 Rule 11 of Civil Procedure Rules and Order 42 Rule 13 (1) of the Civil Procedure Rules. It is important to point out that under Order 42 Rule 13 (4) of the Civil Procedure Rules, the judge shall not allow a matter to procced for hearing unless the record of Appeal is duly filed. Once directions are given under Order 42 Rule 13 of Civil Procedure Rules and the appellant fails to fix the appeal for hearing, the respondent may fix the same for hearing and/or seek dismissal of the same for want of prosecution under Order 42 Rule 35 (1) of the Civil Procedure Rules or the registrar lists the appeal before a judge for dismissal under Order 42 Rule 35 (2) of Civil Procedure Rules. Order 42 Rule 35 (1) of the Civil Procedure Rules stipulates as follows: "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 ". Order 42 Rule 35 (2) of the Civil Procedure Rules stipulates as follows: If, within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar before a judge in chambers for dismissal. " The provisions of the law relating to dismissal cannot be read in isolation. The bottom line is, that directions must have been given before an appeal can be dismissed for want of prosecution. Indeed, there does not appear to be any penalty where an appellant fail to procced as per Order 42 Rule 11 and Order 42 Rule 13 of the Civil Procedure Rules, 2010. In any event, there was also no evidence that the Registrar had issued a notice under Order 42 Rule 12 of Civil Procedure Rules. There was also no indication that the lower court file and proceedings had been forwarded to the High Court for the Registrar to proceed as aforesaid." The High Court went on and reinstated the appeal.”

20. In conclusion, the Respondents/Appellants herein prays that this appeal should not be dismissed and the Respondents/Appellants be allowed to obtain the certified typed copies of the proceedings, judgment and decree to enable them prepare the Record of Appeal. This will be in accordance with the dictates of Justice, truth and equity which governs and directs this Honorable Court.

Analysis and Determination 21. The main issue for determination in the present application is whether the prayers sought should issue?

22. The Appellant however failed to cause the appeal to be listed for directions. The record of appeal was filed on 7th March 2020 and nothing further was undertaken towards prosecuting the Appeal thereafter after the Applicant/Respondent filed this present application to dismiss the appeal. In the case of Peter Kipkurui Chemoiwo v Richard Chepsergon [2021] eKLR, the Court of Appeal held that:“From our own assessment of the matter, the learned Judge did not err. The Appellant filed his memorandum of appeal on 15th September, 2021, filed an application for stay of execution on 2nd October, 2012, obtained interim orders maintaining status quo on 3rd October, 2012 pending hearing and determination of the application and filed the record of appeal on 5th July, 2013. Thereafter, the Appellant made no effort to prosecute his appeal and was only roused from slumber when the Respondent filed his application to dismiss the appeal for want for prosecution.” (underlining ours)

23. However, the steps leading to dismissal of an appeal for want of prosecution are demonstrated hereunder; In the case of Stephen vs Christine Khatiala Andika [2019] eKLR, Kirinyaga General Machinery v Hezekiah Mureithi Ireri [2007] eKLR amongst other cases where the common holding was that an appeal could not be dismissed if directions had not been given.

24. Order 42 Rule 35 of the Civil Procedure Rules, 2010 envisages two (2) scenarios for the dismissal of an appeal for want of prosecution. The first scenario is when an appellant fail to cause the matter to be listed for directions under Section 79B of the Civil Procedure Act as is envisaged in Order 42 Rule 11 of the Civil Procedure Rules. The second scenario is that if after service of Memorandum of Appeal, the appeal would not have been set down for hearing, the registrar shall on notice to the parties list the appeal before the judge for dismissal.

25. Section 79B of the Civil Procedure Act provides as follows:“Before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree, part of a decree or order appealed against he may, notwithstanding section 79C, reject the appeal summarily”

26. Order 42 Rule 13 of Civil Procedure Rules provides as follows: -“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.2)Any objection to the jurisdiction of the appellate court shall be raised before the judge before he gives directions under this rule.3)The judge in chambers may give directions concerning the appeal generally and in particular directions as to the manner in which the evidence and exhibits presented to the court below shall be put before the appellate court and as to the typing of any record or part thereof and any exhibits or other necessary documents and the payment of the costs of such typing whether in advance or otherwise.4)Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say—a)the memorandum of appeal;b)the pleadings;c)the notes of the trial magistrate made at the hearing;d)the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;e)all affidavits, maps and other documents whatsoever put in evidence before the magistrate;f)the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal:Provided that—i.a translation into English shall be provided of any document not in that language;ii.ii. the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).”

27. It is evident from the provisions of Section 79B of Civil Procedure Act that a judge has to peruse the appeal before he can summarily reject the same. These are the directions contemplated in Order 42 Rule 11 of the Civil Procedure Rules that states as follows:“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”.

28. If the appeal is not summarily dismissed, then the registrar shall notify the appellant who shall then serve the Memorandum of Appeal upon all the respondents within seven (7) days of receipt of the notice from the Registrar in accordance with Order 42 Rule 12 of the Civil Procedure Rules.

29. After service of the Memorandum of Appeal, on notice to the parties delivered not less than twenty-one (21) days, the appellant shall again cause the appeal to be listed before the judge for directions as seen in Order 42 Rule 13 of the Civil Procedure Rules.

30. Notably, the procedure for rejection and/or admission of appeal and giving of directions is very well set out in the Civil Procedure Rules. However, this procedure does not seem to be strictly followed and differs from one court to another.

31. In this Court, the Appellant causes the matter to be listed for directions before for admission and directions on hearing of appeal after the High Court receives the file and lower court proceedings.

32. The Respondents/Appellants do not seem to have any role in fixing the appeal for directions as contemplated under Order 42 Rule 11 of Civil Procedure Rules and Order 42 Rule 13 (1) of the Civil Procedure Rules. It is important to point out that under Order 42 Rule 13 (4) of the Civil Procedure Rules, the judge shall not allow a matter to proceed for hearing unless the record of Appeal is duly filed.

33. Once directions are given under Order 42 Rule 13 of Civil Procedure Rules and the appellant fails to fix the appeal for hearing, the respondent may fix the same for hearing and/or seek dismissal of the same for want of prosecution under Order 42 Rule 35 (1) of the Civil Procedure Rules or the registrar lists the appeal before a judge for dismissal under Order 42 Rule 35 (2) of Civil Procedure Rules.

34. Order 42 Rule 35 (1) of the Civil Procedure Rules stipulates as follows:“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”.

35. Order 42 Rule 35 (2) of the Civil Procedure Rules stipulates as follows:“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”

36. The provisions of the law relating to dismissal cannot be read in isolation. The bottom line is that directions must have been given before an appeal can be dismissed for want of prosecution. Indeed, there does not appear to be any penalty where an appellant fail to proceed as per Order 42 Rule 11 and Order 42 Rule 13 of the Civil Procedure Rules, 2010.

37. This court takes the view that an appeal cannot be dismissed before directions had been given. As there was no indication that directions had been given herein, the Appeal herein could not be dismissed under Order 42 Rule 35 (1) of the Civil Procedure Rules. In any event, there was also no evidence that the Registrar had issued a notice under Order 42 Rule 12 of Civil Procedure Rules. There was also no indication that the lower court file and proceedings had been forwarded to the High Court for the Registrar to proceed as aforesaid.

38. In this case, while it is apparent that the Respondent/Appellants filed a Memorandum of Appeal on 7th March 2020 and the same was never admitted. The Respondent/Appellants advocate further made up follow-up on being furnished with certified typed proceedings relating to Nakuru CMCC No 1556 of 2018 but the Exhibit marked as “LN2” does not bear a court receipt rubber stamp. This Court is nonetheless restrained even in the face of such laxity. It should be noted that This Appeal has now joined the Backlog of Appeals even before admission.

39. In Kenya Power & Lighting Co. Ltd Vs Kenya Cold Storage 1964 Ltd HCCC No.387 of2002 Hon. Lady Justice Hannah Okwengu (as she then was) held as follows:“Nevertheless, dismissal of a suit under OXV1 Rule 2(1) of the Civil Procedure Rules requires that notice be given to the parties to appear before the court to show cause why the suit should not be dismissed before any order of dismissal is made”.

40. The import of the preceding authority is that before a suit is dismissed the parties have to be informed since a dismissal is not a light matter. In this instance the Notice to show cause was issued subsequent to the instant Application.

41. The explanation given by the Respondents/Appellants was that the court never availed the documents to them despite them requesting for he same. The Respondents/Appellants have not explained what caused the delay for the 4 years as they sought proceedings. They have also not demonstrated why they never followed up on the proceedings since 2022. The explanation given by the Appellants was not plausible. This is a court of equity and ideally should not aid an indolent litigant.

42. Looking at the case of Arbuthnot Express Services Limited vs Manchester Outfitters Suiting Division Limited & Another [1989] LLR 5515 (HCK) the court observed as follows:-“The general principle of law is that as far as possible, the courts should lean in favour of the trial and determination of proceedings on merits. There are yet other principles viz that delay defeats equities and that he who comes to equity must come with clean hands. The court is duty bound to balance the application of all the principles by weighing one thing against another to see which way the balance tilts.”

43. In the circumstances of this case, the Respondent/Appellants are not wholly to blame for the delay. Despite the very long delay which should not be excused, there is evidence that the Respondent/Appellants made an attempt to follow-up on the proceedings though very minimal, justice dictates that the court must not oust the Appellant from being heard on merit.

44. Having found that courts should be warry of dismissal for want of prosecution even before the Appeal is admitted or directions thereon issued and that the Appellant’s had already complied with the stay conditions, I have to also consider the rights of the Respondents/Appellants and the Applicant/Respondent noting the fact that, she has had to wait for nearly 14 years without prospects of realizing fruits of her judgment. I have taken into consideration that the Respondents/Appellants have strongly opposed the dismissal of the appeal herein for reasons that the Appellants were indolent and lost interest in the Appeal. The Appellants have sought refuge under article 48 access to justice and 159 (2) on procedural technicalities.

45. The right to be heard is an important right in our Constitution and the foundation of the rule of law. This right should therefore not be taken away since it would be unjust and a miscarriage of justice bearing in mind that the Appellants have demonstrated the desire to be heard .

46. I am persuaded that I have to consider the provisions of Article 50 of the constitution on the right to fair trial and the requirements for dispensation of substantive justice under Article 159(2) (b) of the constitution. I find that dismissing this application will attract dire consequences as opposed to allowing the Respondents/Appellants to canvass the Appeal. I also find that the Applicant/ Respondent will not suffer prejudice or loss which cannot be compensated by way of costs if the appeal is to be prosecuted to its logical conclusion.

47. I am persuaded that the Application dated 6th June, 2022 is without merit and consequently it is hereby dismissed as follows; thata.The Appellants are to file and serve a record of appeal within sixty (60) days of this Ruling;b.Thereafter, the Appellants shall cause the Appeal to be listed for directions within fourteen (14) days after filing of the Record of Appeal.c.Failure to comply with (a) and (b) above, the Appeal shall stand dismissed;d.Costs shall be in the causeI so order.

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAKURU ON THIS 5TH OF DECEMBER 2023________________________MOHOCHI S.MJUDGE