[2023] KEHC 20788 (KLR)

Nyoike (Suing as the legal representatives of the Estate of Nyoike Nganga – Deceased) v Nganga (Civil Appeal E194 of 2021) [2023] KEHC 20788 (KLR) (5 July 2023) (Ruling)

Neutral citation: [2023] KEHC 20788 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E194 of 2021

DO Chepkwony, J

July 5, 2023

Between

John Nganga Nyoike (Suing as the legal representatives of the Estate of Nyoike Nganga – Deceased)

Respondent

and

Gaturu Nganga

Appellant

Ruling

1. Before me is a Notice of Motion Application dated March 8, 2023 filed under Order 17 Rules (2)(1) and Order 51 Rule 1, both of the Civil Procedures Rules, Sections 3A and 3B of the Appellate Jurisdiction Act (Chapter 9 Laws of Kenya) Court of Appeal Practice Directions and Civil Appeals and Application, 2015 the provisions of the Court of Appeal Rules 2010.

2. The Application seeks the following orders:-a.That this Honourable Court be pleased to dismiss the Appeal for want of prosecution.b.That the costs of this Application and of the entire appeal be awarded to the Applicant/Respondent.

3. The Application is based on the grounds on the face of it and the Supporting Affidavit of Onchangu Nyagaka Christopher sworn on 8th March, 2023.

4. The Applicant argues that the Appellant filed Notice of Appeal dated October 15, 2021, Notice of Motion application dated October 15, 2021 seeking stay of execution orders and a Memorandum of Appeal dated October 14, 2021. The Applicant argues that this High Court allowed the Notice of Motion application dated October 15, 2021 and issued stay of execution for 60 days on condition that the Appellant deposits Kshs 100,000. 00 into the court. The Applicant holds that on September 20, 2022 the High court marked the application as withdrawn and therefore the stay of execution orders were vacated hence the Appeal does not serve any purpose.

5. The Applicant holds that the appeal was mentioned in court on January 20, 2023 whereby the Court ordered the lower court file being Kikuyu SPM Misc. Application No 15 of 1998 to be returned to the lower court. On that date, the Appellant’s Advocates had been duly served with a mention notice but they failed to attend court. The Applicant holds that the Appellant’s advocates MW Kimani & Co Advocates ceased acting for the Appellant and that he has never been served with a Notice of Change of Advocates.

6. The Applicant seeks the dismissal of the appeal for want of prosecution since the Appellant has not shown any interest in prosecuting the appeal which amounts to abuse of court process.

Analysis and Determination. 7. The Respondent’s Counsel has lodged the application under Order 17 (2) of the Civil Procedure Ruleswhich deals with dismissal of suits and it provides as follows:-“2. (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)If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.(3)Any party to the suit may apply for its dismissal as provided in sub-rule 1. (4)The court may dismiss the suit for non-compliance with any direction given under this Order.”

8. It is worth-noting that this provisions is not with regard to the Law on Dismissal of appeals for want of prosecution is enshrined under Order 42 Rule 35 of the Civil Procedure Ruleswhich provides as follows:-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 Rulesstipulates 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”

9. It is evident that under Order 42 Rule 35(1) of theCivil Procedure Rules time for an appeal starts running after directions have been issued in respect to the hearing of the appeal. In this case, when the matter came up for Directions on February 14, 2023 before the Deputy Registrar, the Counsel for the Respondent sought to have the Appeal dismissed. The court denied to grant the orders and stated that the Appellant’s Counsel had not been served with Mention Notice for that date. The court also noted that the Appellant’s Counsel was absent on November 16, 2022. On June 5, 2023, the Respondent’s Counsel was also absent and the Applicant’s Counsel informed the court that they were unable to serve them with the mention notice for lack of physical address and practice number.

10. The Deputy Registrar issued an interparties hearing date of June 19, 2023 for the present application and directed the parties to be served. On the said June 19, 2023, the Respondent’s Counsel informed the court that it had served the Appellant’s Counsel and there was an Affidavit of Service filed to that effect.

11. It is evident from the court record that the Appellant is not desirous of prosecuting the appeal as he neither filed any pleading in response to the Application despite service of the same upon him. It is trite that litigation must come to an end and the Appellant has a duty to prosecute his Appeal.

12. Further, it is common ground that on September 20, 2022 the High Court marked the Notice of Motion application dated October 15, 2021 as withdrawn and the conditional stay orders issued were thereby vacated. In essence the only pending issue is the appeal itself which the Appellant’s Counsel is not keen on prosecuting it.

13. It therefore follows that the Appeal is ripe for dismissal. However, it must be noted that Directions on the Appeal have never been issued and thus the three months’ timeframe under Order 42 Rule 35 of the Civil Procedure Rules has not started running. This was the position taken by Hon Justice J Kamau in Pinpoint Solutions Limited and Another v Lucy Waithegeni Wanderi (as the Legal Administrator of the Estate of James Nyanga Muchangi)[2020]eKLR which 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 theCivil 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…”

14. However although Directions have not been issued under Order 42 Rule 35(1) it is worth-noting that the Appellant has not taken any steps to prosecute the appeal or fix it for Directions. As indicated in this ruling, the Appellant’s Counsel has not attended court on several occasions and there is no need of giving him any other chance. The court has powers to dismiss the appeal even where Directions have not been issued. See Odunga J in China Road & Bridge Corporation vs John Kimenye Muteti [2019]eKLR, where he held that:-“[19]. 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 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…….” (See also Abraham Mukhola Asitsa v Silver Style Investment Company Ltd[2020]eKLR).

15. As such it cannot be said that the Notice of Motion application dated March 8, 2023 has been filed prematurely as the Appellant has been sleeping on his rights. He neither filed any response to the application nor attended court. Thus, it is clear that he is not desirous of prosecuting the appeal which is hindering the Respondent from enjoying the fruits of the justice.

16. The upshot is that the Application dated March 8, 2023 is not meritorious and the Court therefore makes the following orders:-

a.The Appeal herein is hereby dismissed for want of prosecution.b.The Respondent is hereby awarded costs for both the Application and the Appeal.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 5TH DAY OF JULY, 2023. D. O. CHEPKWONYJUDGEIn the presence of:M/S Akoth-Akech counsel for theCourt Assistant - Martin