[2022] KEHC 1584 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 496 OF 2019

PACIS INSURANCE LIMITED....................................APPELLANT/RESPONDENT

-VERSUS-

KEVITA INTERNATIONAL CO. LIMITED................RESPONDENT/APPLICANT

RULING

1. The respondent/applicant (“the applicant”) in this instance has brought the Notice of Motion dated 28th October, 2021 and sought for the orders hereinunder:

i. Spent.

ii. THAT this Honourable Court do issue an order that the appellant’s appeal dated 26th August, 2019 be dismissed with costs to the respondent.

iii. THAT this Honourable Court do issue an order for the deposit of Kshs.4,000,000/ held at Prime Bank Limited to be released to the firm of Ojienda & Co. Advocates together with interest thereon.

iv. THAT this Honourable Court do issue an order that the Bank guarantee of Kshs.4,000,000/ held at Bank of Africa in the name of Nduati & Ojienda & Co. Advocates be released to the firm of Ojienda & Co. Advocates together with interest thereon.

v. THAT this Honourable Court do issue an order that costs and interest accruing from the matter be paid by the appellant.

vi.THAT the costs of the application be provided for.

2. The Motion is supported by the grounds presented on its face and the facts stated in the affidavit of the applicant’s Managing Director, Je Rangkim.

3. The Motion is opposed by way of the replying sworn by advocateGeorge Muriu on behalf of the appellant/respondent (“the respondent”).

4. When the Motion came up for interparties hearing before the court, the parties were directed to file and exchange written submissions.

5. I have considered the grounds laid out on the face of the Motion, the facts deponed in the affidavits supporting and resisting the Motion, and the contending written submissions and authorities relied upon.

6. The issues raised in the instant Motion are two-fold in nature. I will first determine the issue touching on whether the appeal ought to be dismissed with costs to the respondent.

7. On the one part, the applicant states and submits that despite the Executive Officer forwarding the lower court file together with the certified copies of the typed proceedings and judgment in Milimani CMCC NO. 2025 OF 2016 to the Deputy Registrar-High Court, Civil Appeals Division, the respondent has not filed its record of appeal as ordered by the court on 22nd April, 2021.

8. The applicant further states and submits that it is therefore evident that the respondent is not keen on prosecuting its appeal.

9. In retort, the respondent states and submits that there was a delay in receiving the requisite documents to enable the filing of the record of appeal but that it has since complied, and has done so within a reasonable period of time.

10. Upon my perusal of the record, I note that the applicant herein had previously filed the application dated 6th July, 2020 and sought to have the respondent’s appeal dismissed for want of prosecution.

11. The record shows that upon hearing the parties on the abovementioned application, the court by way of its ruling delivered on 22nd April, 2021 ordered inter alia, that the Executive Officer of the lower court forwards the lower court file to the High Court-Civil Appeals Division within 30 days from the above date; and that the respondent compiles and filed its record of appeal within 14 days from receipt of the requisite documents from the Executive Officer of the lower court.

12. Upon my further perusal of the record, I note that following notices issued by the Deputy Registrar to the Executive Officer on various dates, the Executive Officer by way of the letter received on 4th October, 2021 forwarded the lower court file together with the requisite documents.

13. Going by the record, the Deputy Registrar subsequently issued an notice to the respondent’s advocate to file the record of appeal within 21 days from the 6th day of October, 2021. It remains unclear when this notice was served upon the said advocate.

14. The record however shows that the respondent filed its record of appeal on 5th November, 2021 which indicates compliance within reasonable timelines. In any event, the provisions of Order 50, Rule 6 of the Civil Procedure Rules grant the courts discretionary power to enlarge the time required for performing actions.

15. Consequently, ground (ii) of the preliminary objection fails.

16. This brings me to the second issue for determination, which concerns itself with the release of the decretal sum.

17. Upon my perusal of the record, it is apparent that such release was essentially pegged on the order for dismissal of the appeal, which order I have declined to grant.

18. In the premises, I similarly decline to make any order for the release of the decretal sum.

19. Consequently, the Notice of Motion dated 28th October, 2021 is hereby dismissed with no order on costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF MARCH, 2022.

…….….……………..

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the Appellant/Respondent

……………………………. for the Respondent/Applicant