[2019] KEHC 7085 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO.170 OF 2009

PAN AFRICAN SYNDICATE LIMITED..........................APPELLANT

VERSUS

AON MINET INSURANCE BROKERS LIMITED.......RESPONDENT

R U L I N G

1. This is a ruling in respect of an application by the Respondent, AON MINET INSURANCE BROKERS LIMITED, vide a chamber summons application dated 20th May, 2014 seeking for dismissal of the instant appeal for want of prosecution.

2. The application is brought under Order 42 Rule,2010 and sections1A, 1B and 3A of the Civil ProcedureAct.The same is based upon the grounds set out on the face of it and the affidavit ofANTONY POLO, the Assistant Service Manager of the Respondent based at Mombasa.

3. According to the Respondent, the appellant has failed to take any steps to have the appeal heard and finalized since the same was filed and served. It is indicated that a record of four(4) years have since lapsed and that such delay is inordinate, hence has occasioned injustice to the Respondent.

4. The appellant has opposed the application by filing a replying affidavit dated 17th July, 2014.

5. The appellant’s counsel, Mr. Maina Njonjo avers that the reason they have been unable to proceed with the appeal is because the primary court file No CMCC No.4692 of 2000 cannot be trace at the court registry despite several efforts to do so. He even attached letters to the Executive Officer, Mombasa Law courts (marked “MN1-2”) to confirm this.

6. The appellants counsel also avers that they are unable to prepare a record of appeal or reconstruct a skeleton file without the copies of the typed proceedings and judgment.

7. He urged the court for a thorough investigation be conducted to establish the whereabouts of the file or the person responsible for its loss. He further avers that the appellant deposited Ksh 301,974. 20 the decretal amount in the property suit and is likely to loss the amount of the appeal is dismissed for a mistake that is not his own.

8. I have read through the record, supporting affidavit, replying affidavit and submissions of the Respondent /Applicant ‘s counsel filed on 18. 1.2019.

9. I note that the memorandum of appeal was filed on 25th September, 2000. And until, 20th May 2014, when the respondents filed the chamber summons application seeking to have the appeal dismissed, there is nothing on record to show that the appellant was taking any step to have the appeal set down for hearing. After the filing of the chamber summons application dated 20th May, 2014 by of the respondent, which was more than four (4) years after the filing of the appeal, the Applicant’s counsel responded and attached letters to the Executive Officer, Mombasa Law Courts from them dated 15th July, 2011, 24th November,2011 and 22nd May,2014 respectively to confirm their request for the original file to be traced. He also attached a certificate confirming loss of file (undated and unstamped) and authority to reconstruct the same.

10. It will also be noted that it is not until the 5th June, 2017 that the appellant’s counsel sent a representative to court and they were given 45 days to follow up on the court record, prepare the record of appeal and list the same for mention with a rider that failure to do so, would result into the Respondent moving the court under Order 42 of the Civil Procedure Rules.

11. Again, the matter was mentioned severally with no indication from the appellants as to the state of their appeal. Infact, on 10th July,2018,there was an indication that the counsel were discussing the matter with a view to record a consent but when the matter was mentioned on 17. 9.2018,no indication was given of any settlement and the same was fixed for 30. 10. 2018 for directions with regard to the hearing the application dated 20th May,2014.

12. On 30. 10. 2018, the court gave directions on how the said application would be prosecuted and matter was fixed for highlighting of submissions on 10. 12. 2018 in the presence of the counsel for the respondent and a representative for the appellant’s counsel.

13. On 10th December, 2018, the appellant’s counsel was absent and had not even sent a representative. However, because neither side had filed their submissions, the matter was adjourned to 19th February, 2019 for highlighting.

14. On 19th February, 2019 the matter came up for highlighting and only the respondent had filed their submissions and their counsel, Mr Waweru was in court.

15. The Appellant had not filed their submissions and his counsel was absent and neither did they sent a representative. Mr Waweru proceeded and moved the court to dismiss the appeal as per the prayers sought for in the chamber summons application dated 20th May, 2014.

16. It will be noted that it is now about ten (10) years since the appeal was filed. And, while it is in the interest of the court to preserve a suit for a proper hearing of the action so as to determine and resolve the issues between the parties, this can only be done if it is shown that efforts are being taken by either of them to ensure the suit remains alive so as not to occasion injustice to the defendant. It is clear that there has been inordinate delay in this case. The Appellant’s first explanation for the inactivity was considered and understood by the court and they were accorded an opportunity to set down the appeal for hearing. After this, there was no further explanation to explain why the directions of 5th June, 2017 were not complied with.

17. Order 42 Rule 35 of the Civil Procedure Rules provides as follows;

“Unless within three (3) 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”.

18. The record of appeal has not been filed hence the appeal is not ready to be set down for hearing. The same continues hanging over the respondent and has denied him the enjoyment of the fruits of the judgment in their favour.

19. It is clear that the appellant has been granted sufficient time to prosecute their appeal and has failed to do so.

Accordingly, the application dated 20th May, 2014 by the Respondent be and is hereby allowed.

The appeal herein is hereby dismissed with costs to the Applicant/Respondent.

Ruling dated and delivered this 3rd day of May, 2019.

JUSTICE D. O. CHEPKWONY

3. 5.2019

Before Justice D. O Chepkwony

C/clerk – Beja

No appearance for the Appellant Respondent

Mr Gathuku counsel holding brief for Mr Waweru counsel for the Respondent /Applicant.

Court – Ruling delivered in open court.