[2022] KEHC 14203 (KLR)

Nzioka v Muthiani (Civil Appeal 76 of 2019) [2022] KEHC 14203 (KLR) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14203 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 76 of 2019

MW Muigai, J

October 13, 2022

Between

Preston Mbonzo Nzioka

Appellant

and

Tutus Patrick Muthiani

Respondent

Ruling

NOTICE OF MOTION 1. Vide a notice of motion application dated 17th of February 2022, brought under section 1A, 1B & 3A of the Civil Procedure Act and order 42 rule 35 (2) of the Civil Procedure Rules2010, the applicant seeks the following orders, that;a.The appeal filed herein be dismissed with costs for want of prosecutionb.The costs of this application be awarded to the respondent

2. The application is supported by the affidavit of Titus Patrick Muthiani sworn on an even date in which he contends that the judgement in the lower court was delivered in his favour on 29th of April 2019 and on 30th of May 2019, the appellant filed a memorandum of appeal against the judgement but has taken no action towards prosecution of the appeal until 8th of February 2021 when he filed an application for stay of execution of judgement. He deposed that the appellant was granted conditional stay but has done nothing towards prosecution of the appeal which actions amount to abuse of the process of the court.

Replying Affidavit 3. The appellant filed on 16th on March in which he deposed that the application herein is incompetent, fatally defective and an abuse of the court process as the appeal has never been admitted by the judge. He contended that the memorandum of appeal was deemed properly filed vide a ruling Justice D K Kemei dated 1st of July 2021 as such, one year as per order 42 (1) of the Civil Procedure Rules lapses on 1st of July 2022. He deposed that the respondent as not disclosed to the court that the matter has been in court on August 20, 2021, September 9, 2021 and September 20, 2021 where he opines that the file was returned to the registry for further action.

4. It was deposed that through his advocates, a letter requesting for copy of certified proceedings and judgement was written but they are yet to receive the same. Further that he wrote follow up letters on November 25, 2021 and January 13, 2022. He opines that they have not been able to make the record of appeal and prays that the application herein be dismissed.

5. The application was canvassed by way of written submissions and at the time of writing this ruling, only the applicant’s submissions were on record.

Applicant’s Submissions 6. The submissions were filed on 1st of July 2022 in which it was submitted that section 1B and 3A of the Civil Procedure Act has vested the court with diverse powers for ensuring timely determination of proceedings and preventing abuse of the process of court. It was submitted that the appellant applied for proceedings of the magistrate court after determination of the application for stay of execution which is admitted in the replying affidavit, 2 years and 1 month after filing of the appeal.

7. The applicant opines that the appellant has been indolent in prosecuting the appeal and was only awakened from slumber by the execution. It was contended that the delay is intended to deny the respondent of enjoyment of enjoyment of the judgement of the Magistrate’s Court. The court was urged to allow the application as it is merited.

Appellant/ Respondent’s Submissions 8. The appellant filed submissions on 19th of April 2022 in which he submitted that the threshold for dismissing an appeal for want of prosecution had not been met. The appellant relied on section 79 B of the Civil Procedure Act that provides that;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.

9. Reliance was also placed on order 42 rule 13(1)Upon notice to the parties delivered not less than twenty-one days after the date of service of the memorandum of appeal the registrar 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)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).

10. Further reliance was placed on order 42 rule 35 (1) that provides;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.

11. The appellant submitted that the appeal was filed on March 9, 2021 and subsequently an application seeking stay of execution was filed and ruling delivered on 1st of July 2021 by Justice Kemei. The appellant opined that he filed an application dated August 19, 2021 seeking extension of time to deposit security which was compromised on September 9, 2021 when parties sought time to negotiate and on February 17, 2022, the applicant filed the present application.

12. The appellant contended that it has not been a year since this file was lastly in court. Further, he had also written to the registry seeking to be supplied with typed proceedings and judgment of the lower court. It was submitted that the right of the applicant to enjoy the fruits of the judgment should be balanced against the right of the appellant to be hears and have the appeal determined on merit. Reliance was placed on the case of Njai Stepehen vs Christine Khatiala Andila [2019] eKLR.

Determination 13. I have looked at the application, the affidavit in response, submissions on record and the court record and I find that the issue for determination is whether this appeal should be dismissed for want of prosecution.

14. Dismissal of appeal is provided for under order 42 rule 35 (1) (13) of the Civil Procedure Rules, 2010and which is the provision under which the instant application is brought. It provides as follows;(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”.

15. From my perusal of the record, the matter came up on 9th of February 2021 for hearing of the application dated February 4, 2021 and on order of stay of execution was issued pending direction on 15th of February 2021. On the said date, directions were taken that the matter be disposed of by way of written submissions.

16. On 11th March the matter came up and a preliminary objection dated March 9, 2021 had been filed and directions were taken that it be disposed of by written submissions. Mention to confirm this compliance was set for 31st of May 2021.

17. Ruling on the application and the preliminary objection was delivered on 1st of July 2021. This court found as follows;a.The appellants memorandum of appeal dated 29/5/2019 and filed on 30/5/2019 is deemed as properly filed.b.An order of stay of execution of judgement and decree in Machakos CMCC N0 376 of 2009 is hereby granted pending determination of appeal upon the appellant.c.The costs hereof shall abide in the appeal

18. An application dated 19th of August 2021 came up before this court on 20th of August 2021 when it was certified urgent and came up again on 9th of September 2021 before the Deputy Registrar and on September 10, 2021 when it came up before the court which issued the following orders;a.The appellant is granted ten (10) days within which to deposit the decretal sum into a joint interest earning accountb.In the event of difficulty to comply with order (a) above, the applicant to deposit the said sum into court within 7 days upon expiry of the 1o days granted in (a) above.c.In default to adhere to the terms of execution shall issued.Costs herein shall be in the cause.

19. On September 20, 2021, the file was returned to the registry by consent of the parties for parties to fix fresh dates.

20. In the case of Inpoint Solutions Limited and Another -vs- Lucy Waithegeni Wanderi(as the Legal Administrator of the Estate of James Nyanga Muchangi) [2020] eKLR , 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…”

21. In the instant suit, the memorandum of appeal dated May 29, 2019 was filed on 30th of May 2019. The same has never been set down for directions.

22. Order 42 rule 13 of the Civil Procedure Rules provides as follows;(1)1) Upon notice to the parties delivered not less than twenty-one days after the date of service of the memorandum of appeal the registrar 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)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).

23. Noting that no directions under order 42 rule 13 of the Civil Procedure Ruleshave been made in this file, I find that the application herein is premature as it was filed before directions were given as is required by the rules. However, this does not absolve the appellant who has not moved the court for direction after the file was returned to the registry on September 20, 2021. It is evident that the appellant only began following up on the typed proceedings from the Magistrate Court on October 27, 2021. What has he been doing since April 29, 2019 when judgment was delivered?

24. Failure of directions been given does not mean that this court cannot dismiss an appeal before directions are given. Odunga J in China Road & Bridge Corporation –vs- John Kimenye Muteti [2019] eKLR 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…….”

25. Where there are sufficient reasons, the court can invoke its inherent powers as bestowed on it by the provisions of article 159(2) (b) of the Constitution to do justice without undue delay and section 3A of the Civil Procedure Act and the rules and dismiss an appeal for want of prosecution even where directions have not been given.

26. I am persuaded by the decision of the court in Abraham Mukhola Asitsa v Silver Style Investment Company Ltd [2020] eKLR where it was observed that;“However, I am not persuaded that there is any justification, for the party to file appeal, and thereafter go to sleep. An appeal is not filed for the sake it. It should not be left parked at the appeals registry for times on end, without any action being taken. I believe a party who files appeal and goes to sleep and takes no action on it for a long time, cannot hide order above the provisions and argue that since directions had not been taken then the appeal cannot be dismissed. An appeal should not be left to hang over the head of a respondent endlessly, where the appellant is unwilling to take action on it. Justice demands that the same be resolved one way or the other. I believe dismissal of such stale appeals is one of the resolutions. There is no point of populating appeals registries with appeals that are not being prosecuted, yet the courts are being told they cannot dismiss them before directions are taken. This creates unnecessary backlog. If parties are not moving their cases, the courts should dismiss them. There is no reason for them to clog the system. It is an untenable position. I believe there is inherent power to dismiss such appeals.”

27. The delay in filing the record has been caused by the appellant sleeping on his rights and only requesting for the proceedings late in the day.

Disposition 28. In the premise, I find that justice can still be done in the circumstances. For purposes of expediting the hearing of the appeal, I make the following orders;a.The appellant to file the record of appeal within 60 days from the date of this ruling.b.Thereafter, the appeal to be listed for directions within 15 days after filing of the record of appeal.c.The appeal to be prosecuted within sixty (60) days from the date the directions shall be given.d.The respondent/applicant is awarded throw away costs assessed at Kshs 10,000/= to be paid within 14 days from the date of this ruling.It is so ordered.

DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 13TH DAY OF OCTOBER, 2022. (VIRTUAL/PHYSICAL CONFERENCE)M.W MUIGAIJUDGE