[2023] KEHC 25521 (KLR)

Mwendia v Herina (Civil Appeal 060 of 2021) [2023] KEHC 25521 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25521 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 060 of 2021

SM Mohochi, J

November 21, 2023

Between

Reuben Mwangi Mwendia

Appellant

and

Stephen Ngugi Herina

Respondent

Ruling

1. Before this court for determination is the Application dated 9th September, 2022 seekingi.That this Honourable Court be pleased to dismiss the Appeal for Want of Prosecution.ii.That in the alternative, the Honourable Court be pleased to issue Notice to the Appellant to Show Cause why the Appeal should not be dismissed for Want of Prosecution.iii.That the costs of this Application be provided for and borne by the Appellant in any event.

2. The Application is premised on the provisions of order 42 rule 35 (2) and order 51 rule 1 of the Civil Procedure Rules,the grounds on the face of the application, and the averments made in the Supporting Affidavit of Kisilah Daniel Gor, sworn on 9th September, 2022.

3. The appeal herein arose from the Judgement in Nakuru CMCC No 808 of 2018 delivered by Hom J B Kalo Chief Magistrate delivered on 13th May, 2021. Being, dissatisfied by the impugned judgement, the Appellant filed this appeal vide Memorandum of Appeal dated 31st May, 2021.

4. The Respondent now Applicant averred that that it has been over one year and the Appellant has not taken any steps to prosecute it which has been oppressive and pre-judicial to the Respondent. That the Appellant seems disinterested and there has been no justification for the Appellants inaction.

5. The Application is opposed through a Replying affidavit sworn by the Lawrence Ngugi Mwangi, advocate, on 14th November, 2022. He avers that dismissing the Appeal in a hurry would lead to a miscarriage of justice to the detriment of the Appellant. That the Deponent is handling the appeal on behalf of the Appellant having being requested by Kituo Cha Sheria on 17th May, 2021 and the Appellant being a man of straw should not suffer an injustice.

6. That the Covid 19 pandemic created interruptions and disruptions hence the non-progression. He also urged court to take judicial notice of the current trends in prosecution of matters during the pandemic and disallow the application. He also averred that he has been unwell as a result of an accident and had little time to address it.

7. The Application was disposed of by way of written submissions. Both parties filed their submissions.

Respondent/Applicant’s Submissions 8. In support of his Application, the Respondent in his submissions raised three issues for determination. Though his counsel, he submitted that the Appellant has neither filed the Record of Appeal or set down the Appeal for directions before the judge or any step that can be considered as being in prosecution of this matter contrary to the principles of Natural justice and relied on Bwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others[2015] eKLR, Peter Kipkurui Chemwoiyo v Richard Chepsergon[2021] eKLR, Invesco Assurance Co. Ltd vs Onyange Barrack [2018] eKLR and China Road & Bridge Corporation vs John Kimenye Muteti [2019] eKLR.

9. The Applicant cited the case of Omari Shee Kisahafu vs Kwale International Sugar Company Limited (2020) eKLR and Kiiru M’mugambi & 39 Others v Moses Kirima Meenya & Kirima & Advocates & 3 Others (202) eKLR where the respective courts allowed the applications for dismissal for failure to give sufficient and reasonable reasons for the delay.

10. The Applicant submitted that prejudice will be visited upon him since the primary suit was instituted 15 years ago and that the delay is intentional. That the Appellant’s conduct shows that his intention is to delay the prosecution of the appeal contrary to the overriding objective of this court which require that cases be determined expeditiously. The Applicants urged court to exercise its discretion and dismiss the appeal with costs while placing reliance in the case of Shadrack Cheserk v Kipserem Mengich & Another [2016] eKLR which cited Mbogo v Shah 1968 EA 93.

Appellant’s Submissions 11. The Appellants submitted that the delay in prosecuting the matter was not deliberate and that the delay was due to the global pandemic and that the lower court took too long to type and supply proceedings Kwacha Group Companies v Pindoria Holdings Limited [2022] eKLR (Argan Wekesa Okumu vs Dima College Limited & 2 Others [2015] eKLR.

12. Reliance was place on Article 50 of the Constitution and the case of Njai Stephen v Christine Khatila Andika [2019] eKLR on the importance of fair trial. That the right of a party to enjoy the fruits of his judgment should be weighed against the right of a party to access court to have his dispute heard and determined.

13. The Appellant also submitted that the court should allow the Appeal since the Respondent has not demonstrated irreparable damage and if the court is in doubt this Application be decided on a balance of probability while relying on East African Development Bank v Hyundai Motors Kenya Limited [2006] eKLR.

Analysis and Determination 14. After careful consideration of the respective positions by parties in support of their positions, the rival submissions and the guiding legal principals on dismissal of a suit for want of prosecution the issues for determination therefore are:-a.Whether the appeal is ripe for dismissal?b.Can prayer No. 2 issue?c.Who shall bear costs of the application?

15. .Dismissal of a suit want of prosecution in this instant is enshrined under in order 42 of the Civil procedure Rules which provides:-Order 42 Rule 13 stipulates as follows:-Upon Notice to the parties delivered not less than 21 days after the date of service of the memorandum of appeal the registrar shall cause the appeal to be listed for giving directions by a judge in chamber.Order 42 Rule 35 (1) 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) 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”

16. In this case the Respondent has argued and submitted strongly that after the filing of the Memorandum of Appeal, the Appellant has never bothered to file the Record of Appeal nor has he taken steps to prosecute the same and the delay has subsequently been prejudicial to the Respondent as it has denied him the fruits of his judgment.

17. The Appellant also contended that the Application for want of prosecution is premature.

18. Going back to the provisions of order 42, the legal position in this respect was laid out in Pinpoint Solutions Limited and Another v Lucy Waithegeni Wanderi (as the Legal Administrator of the Estate of James Nyanga Muchangi)[2020] eKLR where the Learned Judge held that:“20. 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 fails to proceed as per Order 42 Rule 11 and Order 42 Rule 13 of the Civil Procedure Rules, 2010.

21. This court took 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 the 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…”

19. To this end I agree that the Court has to give directions first before a party can move the court to have the appeal dismissed for want of prosecution. The prayer for dismissal is not ripe.

20. The Respondent on the other had hand contended that the court has inherent jurisdiction to dismiss the Appeal even if directions have not yet been given. That the Appellant cannot invoke appeal and thereafter sleep on his rights.

21. I agree that it is not in order for the Appellant to seek favour under the constitution and hide under Order 42 yet he is the one who sat on his rights. This is an abuse of the court process whereby this court ought to not condone. There is nothing barring the court from dismissing this Appeal even where there were no directions given. See China Road and Bridge Corporation vs John Kimenyae Muteti (supra). This Court has the inherent powers under Section 3A of the Civil Procedure Act to invoke discretion as may be required in order to meet the ends of justice and to endure that there is no abuse of procedure.

22. The Appellant has given several reasons for the delay, one being the outbreak of the Novel Covid-19 pandemic. This court takes judicial notice of the challenges that the outbreak of the COVID 19 Pandemic had on the courts and the overall crippling of administration of Justice. However, the court is alive to the fact that despite the closure of registries and downscaling, some form of normalcy had resumed by January, 2022. There was nothing barring the Appellant from following up on the Appeal for over one year. The Appellant has not demonstrated what he did post the outbreak and further post lockdown. The delay on the Appellant’s part cannot in my opinion be attributed by the pandemic. This is an act of bad faith on the part of the Appellant.

23. The Appellant has attached a letter dated 31st May, 2021 addressed to the court seeking certified copies of proceedings. This letter was for a strange reason attached to the submissions. This letter was not addressed in the Replying Affidavit. In fact, there is no mention of whether the Appellant moved court at all in pursuit of proceeding the Replying Affidavit. The Appellant cannot introduce evidence by way of submissions and expect court to consider it. See Erastus Wade Opande v Kenya Revenue Authority & Another Kisumu HCCA No. 46 of 2007: where Mwera, J (as he then was) opined:-“Submissions simply concretize and focus on each side’s case with a view to win the court’s decision that way. Submissions are not evidence on which a case is decided.”

24. The said letter also does not seem to have been received by court. That letter appears to be an afterthought to try an persuade court that the Appellant was not indolent. The Appellant cannot produce documents or evidence in submissions and the blame his indolence the registry and the covid 19 pandemic. The way the Appellant has handled the Appeal is lackluster.

25. The Appellant has further contended that the Respondent has not demonstrated the irreparable damage that he will suffer. It is my considered view that it is in the delay in taking steps to prosecute the appeal that is pre-judicial to the Respondent. It shows dis-interest and further denies the Respondent fruits of his judgment. The Respondent had a judgement in his favour and he cannot enjoy the judgement because an appeal was preferred thereafter the Appellant went to slumber.

26. It is clear from the instant case that the delay herein is indeed prolonged, unexplained and inexcusable. There was also no action. The Appellant being represented by an advocate cannot as such blame downscaling at registries and Covid 19 for his zero attempt to file the Record of Appeal.

27. Be that as it may, what would the interest of justice dictate? This court must to do substantive justice to all parties involved as was held in Kenya Commercial Finance Co. Ltd – Vs – Richard Akuesera Onditi(A) 329/2009, the Court of Appeal opined that:-“In many cases there will be alternatives which enable a case to be dealt with justly without taking the draconian step of striking the case out. In applying the principle or concept of overriding objective, each case must be viewed on its own peculiar facts and circumstances and it would be a grave mistake for anyone to fail to comply with well settled procedures and when asked why, to simply wave before the court provisions of Sections 3A and 3B of the Appellate Jurisdiction Act. The court still retains an unqualified discretion to strike out a record of appeal or a notice of appeal; the only difference now is that the court has wide powers and will not automatically strike out proceedings. The court, before striking out, will look at the available alternatives.”

28. I am guided by the principles laid down in deciding a prayer for dismissal for want of prosecution as laid down in the case of Ivita v Kyumbu [1984] KLR 441, thus:-“The test by the court in an application for the dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is, whether justice can be done despite the delay. Thus, even if the delay is prolonged, if the court is satisfied with the plaintiff’s excuse for the delay and that justice can still be done to the parties, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest available time. It is a matter in the discretion of the court.”

29. Indeed, the right of the Respondent to enjoy the fruits of his judgment must be considered against the right of the Appellant to have his dispute determined on merit.

30. Article 50(1) of Constitution 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.”

31. In order to enforce equity and ensure that the spirit of the constitution is observed, it is my considered view that dismissing the Appeal at this stage would be drastic. The Respondent too deserves to actualize his judgement. This being a court of equity, the court has powers to exercise its discretion so as to grant the Appellant a reprieve by granting him a chance to be heard on merit. I also believe that, the reprieve should not be granted without conditions so as to ensure procedure is respected.

32. As regard to prayer No. 2. The Respondent has sought that alternatively the Appellant be issued with a Notice to Show cause why the Appeal should not be dismissed. I respectfully feel that issuance of that Notice would not help the court meet its overriding objective of effective disposal of suits. The court would spend time again to deliberate what has been addressed hereinabove.

33. I therefore disallow the Application dated 9th September, 2022 and order that: -a.The Respondent’s/Appellants to file and serve a record of appeal within sixty (60) days of this Ruling;b.Thereafter, the Appeal to be listed for directions within fourteen (14) days after filing of the Record of Appeal.c.The Applicant/Respondent is awarded throw away costs assessed at Kshs. 10,000/= to be paid within thirty (30) days from the date of this Ruling.d.Failure to comply with (a) above, the Appeal shall stand dismissed;

It is hereby so ordered.

Signed, Dated and Delivered Virtually at Nakuru on this 21st November 2023________________________Mohochi S.MJUDGE