[2023] KEHC 23747 (KLR)

Ngari v Wangithi & another (Suing as the administrators of the Estate of Jacob Ngondo Mwaria) (Civil Appeal 4 of 2019) [2023] KEHC 23747 (KLR) (18 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23747 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 4 of 2019

RM Mwongo, J

October 18, 2023

Between

Francis Muriithi Ngari

Appellant

and

Dorcas Wangithi

1st Respondent

James Ndambiri Mwaria

2nd Respondent

Suing as the administrators of the Estate of Jacob Ngondo Mwaria

Ruling

Background 1. The applicant’s notice of motion dated 31st August, 2022 seeks that the appeal filed herein be dismissed with costs to the respondent for want of prosecution.

2. The application is supported by the affidavit of Dorcas Wangithi Kariithi, and is on the grounds: That the appellant filed a memorandum of appeal on 6th February 2019; That it has been three years since the appeal was filed and the appellant has not taken any step to prosecute the appeal; That the continued pendency of the appeal is not only against the principles of justice but also prejudicial to the respondent; and that litigation must come to an end and continued existence of this matter in court is causing a lot of anxiety to the respondent/applicant.

3. The applicant’s supporting affidavit reiterates the above grounds upon which the notice of motion is based.

4. The respondent opposed the motion on the following grounds: That the Application dated 31. 8.2022 is frivolous, vexatious and an abuse of Court process; That the Application is premature as the Appeal is yet to be admitted and directions given; That the lower Court file was transferred to this Honourable Court before filing and extraction of decree appealed against.

Parties’ Submissions 5. Parties made oral submissions in court.

6. The applicant urged that the appellant has never taken any step to prosecute their appeal. Order 42 Rule 13 was never complied with; that Order 42 Rule 35 concerns dismissal for want of prosecution; that there is no reason given for failure to file the Record of Appeal, and that the applicant has not shown any effort to follow up on the lower court file.

7. The respondent submits that they have prepared the record of appeal. However, that they have not filed the same as they have not obtained a certified decree since the lower court file is tied to the High Court file making it difficult to obtain a certified copy of the decree. They seek that the lower court file to be returned to the lower court for extraction of decree.

8. The sole issue is whether the appeal can or should be dismissed.

Analysis and Determination 9. The judgment which is sought to be appealed against was delivered in Gichugu PMCC No. 9 of 2018 on 16th January, 2019. Thirty days’ stay of execution was granted to the appellant in the lower court. The appellant filed the memorandum of appeal timeously on 6th February 2019.

10. Since then, the appellant has not taken any step to prosecute the appeal. It is thus asserted by the respondent that Order 42 Rule 13 was not complied with as the appellant should have had the appeal listed for directions. Rule 13 provides:“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.” [Emphasis added].

11. What many parties seeking dismissal of appeals for want of prosecution fail to appreciate is that the applicable procedure in appeals is under Section 79 of the CPA. In particular, Section 79B 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.”

12. Clearly, an appeal must first be perused for admission or summary rejection by a Judge before the same can be heard. This is done pursuant to Order 42 Rule 11 which provides for the process 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”

13. It is only after a judge refuses to summarily reject an appeal under Order 42 Rule 12 that an appellant is notified by the Registrar, and such appellant is then required to serve the memorandum of appeal on every respondent. Accordingly, only after service of the memorandum of appeal does Order 42 Rule 13 kick in, requiring the appellant to cause the appeal to be listed for directions.

14. Accordingly, there is no requirement, prior to the invocation of Section 79B, for the appellant to prosecute the appeal or move the court. Further, under Order 42 Rule 2, where no certified copy of the decree or order appealed from is filed with the memorandum of appeal, the court need not to consider whether to summarily reject the appeal under section 79B until a certified copy of the decree or order is filed.

15. Order 42 Rule 35(1) which can be invoked for dismissal for want of prosecution, is only available in cases where directions have been given under Order 42 Rule 13, and service of the memorandum of appeal has been effected under Rule 12, but directions given by the Court have not complied with. Similarly, dismissal for want of prosecution can be invoked by the Registrar if one year has lapsed after service of the memorandum of appeal and no hearing date has been set for the appeal.

16. The relevant provisions of Rule 35 are hereunder:“(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.”

17. In the present case, there were no orders of stay given in the High Court and the appeal was, in effect, a dud as there was nothing to prevent execution.

18. In Grace Njeri Theuri v John Mburu Wainaina [2022] eKLR Kariuki J held:“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 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. I agree with the aforesaid position. In the circumstances, the application for dismissal does not lie and is hereby dismissed. Costs shall abide the outcome of the appeal.

20. The appellant shall file and serve the Record of Appeal within 45 days from today’s date and take directions for hearing.

21. Orders accordingly.

DATED AT KERUGOYA THIS 18TH DAY OF OCTOBER 2023. ..........................................R. MWONGOJUDGEDelivered in the presence of:1. Muthoni holding brief for Mwaura for Respondent - Dorcas.2. Kahiga on the Platform (Virtual) but not responding.3. Francis Muriithi Ngari Applicant/Respondent4. Murage - Court Assistan