[2024] KEHC 10948 (KLR)

Njoroge v Fujo; Marie (Interested Party) (Civil Appeal E001 of 2021) [2024] KEHC 10948 (KLR) (23 September 2024) (Ruling)

Neutral citation: [2024] KEHC 10948 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E001 of 2021

JK Ng'arng'ar, J

September 23, 2024

Between

Joshua Njoroge

Appellant

and

Meali Hussein Fujo

Respondent

and

Wirz Anne Marie

Interested Party

Ruling

1. The Respondent filed a Notice of Motion application dated 24th June 2024 pursuant to Section 3A, 79B of the Civil Procedure Act Cap 21 of the Laws of Kenya, Order 42 Rule 11 & 13 and 35 of the Civil Procedure Rules 2010 and all enabling provisions of the law. The Respondent/Applicant prayed for orders that the appeal be dismissed for want of prosecution and that costs of the appeal and the application be awarded to him.

2. The application was based on grounds on the face of the application and the Supporting Affidavit of Meali Hussein sworn on 24th June 2024 that on 30th June 2022, the court directed the Appellant to file and serve an Amended Memorandum of Appeal within 60 days. That the 60 days lapsed without the Appellant’s compliance and that the Appellant failed to seek for extension of time to file the Memorandum of Appeal. That the existence of the appeal is delaying the Respondent from enjoying fruits of judgment, that the Appellant has lost interest towards prosecuting the appeal, and that it is in the interest of justice that the appeal be struck out for want of prosecution.

3. After considering the application herein and the materials on record, the issues for determination are whether the application for dismissal of the appeal for want of prosecution has merit and what orders are for costs.

4. Judgment was delivered on 2nd December 2020 in Kwale Civil Suit No. 220 of 2011 in favour of the Respondent. The Appellant being dissatisfied with the decision filed a Notice of Motion application dated 25th February 2021 seeking for stay of execution of the judgment, for enjoinment of the interested party as a 2nd Respondent, for leave to file an Amended Memorandum of Appeal, and that costs of the application be provided for.

5. The court herein delivered a ruling dated 30th June 2022 to the effect that the Applicant shall be enjoined to this appeal as a 2nd Respondent, that the Applicant will file and serve an Amended Memorandum of Appeal within 60 days, that the Applicant shall obtain a bank guarantee specific to this appeal for the whole duration of the appeal for purposes of securing payment of the decretal amount together with costs and interests from a reputable financial institution within 60 days of the ruling, that costs of the application to abide the outcome of the appeal, and copies of the ruling supplied to the advocates for the parties herein.

6. This court has established that there was no compliance with directions of the court within the stipulated time limit. The proceedings show that there was no appearance for the parties in court on several occasions when the matter came up despite notices being served, until the Respondent/Applicant filed the application herein for dismissal of the appeal for want of prosecution and the Appellant/Respondent’s failure to comply with the court orders.

7. Dismissal of suits for want of prosecution are guided by provisions of Order 17 Rule 2 of the Civil Procedure Rules which provides: -1).In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.2).…3).Any party to the suit may apply for its dismissal as provided in sub-rule 1.

8. The legal principles above were relied on in the decision of Investment Limited v G4s Security Services Limited (2015) eKLR where court held: -“…This is well understood in the legal reality that dismissal of a suit without hearing it on merit is such draconian act comparable only to the proverbial “Sword of the Damocles”. But in reality should be checked against yet another equally important constitutional demand that case should be disposed of expeditiously, which is founded upon the old adage and now an express Constitutional Principle of Justice under Article 159 (2) of the Constitution of Kenya that justice delayed is justice denied. Here I am reminded that justice is to all the parties not only to the Plaintiff…”

9. This court also notes that the Appellant/Respondent has filed the Record of Appeal dated 30th July 2024 and attached to it is a letter dated 30th July 2024 requesting for typed proceedings, certified copies of the judgment and decree. This court is of the opinion that the Appellant/Respondent have not been keen in prosecuting the appeal while they were enjoying stay of execution orders at the expense of the Respondent/Applicant.

10. In the case of Thathini Development Company Limited v Mombasa Water & Sewerage Company & Another (2022) eKLR, it was held: -“It is the duty of court to do justice between the parties, Section 1B of Civil Procedure Act, Cap. 21 provides that there should be just determination, effective and timely disposal of proceedings and effective use of judicial time and resources. It is upon this duty of overriding objective does this court, take time and puts in resources to dismiss suits that have been unprosecuted for more than one year to ensure that other active cases have ample time to be determined. The court will not allow matters to be filed and whereby once the parties obtain interim orders then proceed to keep the file idle. This causes the clogging the justice system and unacceptable for nothing.”

11. This court shall therefore apply the above position in the case herein.

12. On the issue of costs, Section 27 (1) of the Civil Procedure Act provides that costs follow event. Courts have the discretion in granting the costs and the said discretion ought to be exercised judiciously. This court finds that the Appellant/Respondent filed the appeal herein and failure to comply with orders of the court led to filing of the application herein. Costs are therefore awarded to the Respondent/Applicant as against the Appellant/Respondent.

13. In conclusion, the court makes the following orders: -a.The Respondent/Applicant’s Notice of Motion Application dated 24th June 2024 is allowed.b.The Appellant/Respondent appeal is dismissed.c.Costs of the Respondent/Applicant’s Notice of Motion Application dated 24th June 2024 and the appeal to be borne by the Appellant/Respondent to the Respondent/Applicant.

DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 23RD SEPTEMBER 2024J.K. NG’ARNG’AR, HSCJUDGEIn the presence of: -No appearance Advocate for the AppellantMohamed Advocate for the Respondent/ApplicantNo appearance Advocate for the Interested PartyCourt Assistant – Mr. Samuel Shitemi