[2022] KEHC 3293 (KLR)

Odero v Flutterwave Payments Technologies Limited (Civil Appeal E197 of 2020) [2022] KEHC 3293 (KLR) (Civ) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3293 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E197 of 2020

JK Sergon, J

July 8, 2022

Between

Clara Wanjiku Odero

Applicant

and

Flutterwave Payments Technologies Limited

Respondent

Ruling

1. The respondent/applicant in this instance has brought the Notice of Motion dated 21st February 2021 which is supported by the grounds set out in its body. The applicant sought for an order to the effect that the appellant’s/respondent’s appeal be dismissed for want of prosecution with costs.

2. The appellant/respondent opposed the Motion by filing the Grounds of Opposition dated 23rd May 2022 and put forward the following grounds:a.The application is fatally defective as no affidavit in support of the application has been filed. All allegations of fact are uncorroborated under oath.b.An appeal can only be dismissed for want of prosecution once directions have been given. Directions are yet to be issued herein.c.The application has been made under the provisions of Order 35 of the Civil Procedure Rules which governs proceedings by agreement between the parties herein.

3. The appellant/respondent further opposed the Motion by filing the replying affidavit sworn by Clara Wanjiku Odero on 24th May 2022.

4. When the Motion came up for interparties hearing before the court on 18th May, 2022 the parties were directed to file and exchange written submissions. I have considered the grounds set out on the face of the motion dated 21st February 2022 and the facts deponed in the replying affidavit.

5. The sole issue for determination before this court is whether the appeal filed by the respondent is ripe for dismissal.

6. The applicant in its application stated that its been a period of over 1 year since the last step was taken in this matter, as such the appellant is obviously not interested in prosecuting this appeal, that the delay by the appellant/respondent to take the necessary steps to set down the appeal for hearing is inordinate, unreasonable and inexcusable.

7. The applicant further stated that the pendency of the dispute between the parties since the year 2019 is oppressive to them and egregiously prejudicial to it as it must face anxiety of pending litigation against it and the delay in setting down the appeal for hearing will prejudice the fair trial of the dispute and it is otherwise an abuse of the due process of this court.

8. It is the applicant’s assertion that it is only just and fair that the respondent be relieved of the burden of this litigation in the circumstance as every case should be concluded within reasonable period.

9. In response, Ms. Clara Wanjiku Odero stated inter alia, that this matter was yet to be set down for directions on the appeal as they were yet to file the record of appeal and that the delay has been caused by a delay in acquiring the typed proceedings.

10. The deponent further stated her appeal has a high probability of success as is manifest from the memorandum of appeal and in particular the fact that the learned trial magistrate awarded her damages that were manifestly low in the circumstances.

11. It is the appellant’s submissions that this application is fatally defective as it has been made under the wrong provisions of the law and no affidavit in support of the application has been filed. She relied on the case of University of Nairobi v George Sifuna(2021) eKLR where an application for want of prosecution was dismissed for failure to annex an affidavit in support of the application in the following words:-“An application without a Supporting Affidavit lack in a material way. It is filed against the Rules of the Court. such stands alone as unsupported. This is not a mere technicality that can be cured in any manner by the court. it has to suffer the obvious. Being struck off for want of a Supporting Affidavit.”

12. The appellant submitted that the respondent has not demonstrated the prejudice they stand to suffer should the appeal be heard and that the policy of the judiciary is not to turn away litigants seeking to be heard, thus the court are slow to turn away litigant who is ready and willing to be heard.

13. On this the appellant relied on the case of Pinpoint Solutions Limited & another v Lucy Waithegeni Wanderi (as the Legal Administrator of the Estate of James Nyanga Muchangi(2020) eKLR where the court stated as follows in dismissing an application for want of prosecution of the appeal:22. Notably, every person is entitled as envisaged under article 50(1) of constitution the Constitution of Kenya, 2010 to have a fair trial. The said article 50(1) of Constitution of Kenya 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.”23. It therefore follows that every person ought not to be shut out from accessing court or having his day in court. Indeed, the right of a party to enjoy the fruits of his judgment must be weighed against the right of a party to access court to have his dispute heard and determined by a court or tribunal of competent jurisdiction.24. It was therefore the considered opinion of this court that allowing the present application would be shutting out the Appellants from accessing the court and would be contrary to article 50(1) of Constitution of Kenya.

14. It is not disputed that the notice of motion dated 21st February 2022 is not supported by any affidavit.The case of Simon Muteti Mutune vs Co-operative Bank of Kenya Limited[2015] eKLR that was relied upon by the plaintiff/respondent is distinguishable from the facts of this case as the same had sought injunctive orders in which affidavit evidence was critical before the court could establish whether or not the plaintiff therein was entitled to the orders he had sought. This is equivalent to Order 2 Rule 15 (2) of the Civil Procedure Ruleswhich provides as follows: -“No evidence shall be admissible on an application under sub rule 1(a) but the application shall state concisely the grounds on which it is made.”

15. In this matter all facts pertaining to this application are on record. An affidavit may not have added any value.

16. Order 42, Rule 35 of the Civil Procedure Rules, 2010provides for the circumstances and manner of dismissal of an appeal 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.”

17. From the record, it is apparent that the respondents filed their memorandum of appeal on 10th September, 2020.

18. The record shows that subsequently, it is clear that the appellant has been unable to set the appeal down for directions but she has been unable to do so on account of the fact that proceedings in the lower court matter are yet to be typed and supplied to enable the preparation of been taken to ensure that the proceedings have been typed but unfortunately the process is beyond the control of the appellant she has no say over the pace at which the proceedings are typed.

19. Following from the foregoing, it is apparent that directions are yet to be given in respect to the appeal and consequently, the appeal is yet to be set down for hearing. It therefore follows that the appeal cannot be deemed to be ripe for dismissal under the provisions of Order 42, Rule 35(1) (supra).

20. There is also nothing to indicate that the Deputy Registrar has since listed the appeal before a judge for dismissal pursuant to the provisions of Order 42, Rule 35(2) (supra).

21. More importantly, I have established from the record that the lower court file has not been made available to this court which therefore means that it would not have been possible in any event for the appeal to be admitted and/or set down for directions in absence of the file.

22. In the premises, I find the Motion to be premature and the same is struck out. However, the appellant should take steps to have the appeal prosecuted expeditiously. Each party to bear their own costs of the motion.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 8TH DAY OF JULY, 2022. ……………………….J. K. SERGONJUDGEIn the presence of:………………………………. for the Appellant/Respondent………………………………. for the Respondent/Applicant