https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10342

Mburu v Mugure (Civil Appeal E111 of 2023) [2026] KEHC 10342 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10342 (KLR) Republic of Kenya In the High Court at Nakuru Civil Appeal E111 of 2023 JK Sergon, J July 9, 2026 Between Pauline Waithera Mburu Appellant and Judy Munyaka Mugure Respondent Ruling 1.Before me for determination is the Respondent/Applicant's Notice of Motion dated 30th January, 2026. The Application is expressed to be brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, and all other enabling provisions of the law. 2.The Applicant seeks the following orders:a.Spent.b.That this Honourable court be pleased to dismiss the appeal herein for want of prosecution.c.That this Honourable court be pleased to order the immediate release and payment to the Respondent/Applicant of the decretal sum amounting to Kshs. 1,006,925 together with accrued interest currently held in a joint interest-earning account at NCBA Bank Account No. 884xxxxx26 in the names of the parties’ advocates being Elizabeth Wangare & Murimi Ndumia, Mbago & Muchela Advocates.d.An order that the Appellant/Respondent pays the costs of this Application.e.That upon grant of prayers (b), (c) and (d) above, the court be pleased to issue similar orders in Nakuru HCCA NO. E112 OF 2023 in respect of the decretal sum of Kshs. 1,113,428 together with the accrued interest held in the joint interest earning account aforementioned. 3.The Application is supported by the Affidavit of Elizabeth Wangari Mukira, Advocate for the Respondent/Applicant, sworn on 10th February, 2026, and the grounds set out on the face thereof. 4.The Appellant/Respondent was duly served on 18th February, 2026 as evidenced by the Affidavit of Service filed on 24th February, 2026. The Appellant/Respondent was also served again on 24th June 2026 with a ruling notice. 5.Despite being granted the opportunity and having been properly served, the Appellant/Respondent has not filed any replying affidavit, grounds of opposition, or written submissions. The Respondent/Applicant filed her written submissions on 21st April, 2026. 6.Judgment was entered in favour of the Respondent/Applicant in Nakuru CMCC NO. 170 OF 2019 on 18th February, 2022 against the Appellant/Respondent and a third party jointly and severally for Kshs. 1,223,165 together with costs of Kshs. 175,300. A similar judgment was entered in Nakuru CMCC NO. 171 OF 2019 for Kshs. 1,368,072 together with costs of Kshs. 182,540. 7.Liability was apportioned at 70:30 against the Appellant/Respondent and the third party respectively. The third party has since settled his 30% share. 8.Aggrieved by the judgment, the Appellant/Respondent filed the instant appeal on 12th June, 2023. 9.On 26th September, 2023, the trial court (Chief Magistrate's Court at Nakuru) granted a stay of execution pending hearing and determination of the appeal on condition that the Appellant/Respondent deposits the decretal sums in a joint interest-earning account within thirty (30) days. 10.The Appellant/Respondent complied on 28th December, 2023, by depositing the sum of Kshs. 2,064,353.90 in Account No. 884xxxxx26 at NCBA Bank. 11.It is the Applicant's case that the Appellant/Respondent has taken no steps to prosecute the appeal since their filing. The Applicant therefore seeks dismissal of the appeal and release of the decretal sums. 12.Having considered the record, the following issues arise for determination;(a)Whether the appeal should be dismissed for want of prosecution.(b)Whether the decretal sums held in the joint account should be released.(c)Who shall bear the Costs? 13.The law governing dismissal of appeals for want of prosecution is found in Order 42 Rule 35 of the Civil Procedure Rules, 2010, which provides:Rule 35(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."Rule 35(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." 14.The principles governing dismissal for want of prosecution are well-settled. In Ivita V Kyumbu [1984] KLR 441, the Court of Appeal held that the Applicant must demonstrate; · Inordinate delay; · Inexcusable delay; and · Prejudice to the Respondent. 15.These principles were affirmed in Wilson Kiarie Njoroge V Family Bank Ltd & Another [2015] eKLR, where the Court stated;“...before making such an order as the one sought herein, i.e dismissal of a suit, the court must first satisfy itself that there was inordinate delay in prosecuting the matter, that the said delay was deliberate and inexcusable and is an abuse of the court process, that the said delay shall occasion prejudice to the other party..." 16.I now apply these principles to the present case. 17.The appeal was filed on 12th June, 2023. As at the date of filing this Application on 30th January, 2026, a period of 31 months had elapsed with no action taken by the Appellant/Respondent to prosecute the appeals. This delay far exceeds the one-year timeline provided under Order 42 Rule 35(2). 18.In Mwangi S. Kimenyi V Attorney General & Another [2014] eKLR, the Court observed:“Inordinate delay will differ from case to case depending on the circumstances of each case...... nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable." 19.I find the delay of 31 months to be inordinate. 20.The Appellant/Respondent obtained a stay of execution from the trial court conditional upon depositing the decretal sums. Having obtained this benefit, she had a duty to prosecute the appeal diligently. She has failed to do so. 21.The Appellant/Respondent was properly served with this Application on 18th February, 2026 as evidenced by the Affidavit of Service filed on 24th February, 2026. Despite being granted an opportunity to respond by this Court's order of 17th February, 2026, the Appellant/Respondent has not filed any response. 22.In Kenya Akiba Micro Financing Limited V Ezekiel Chebii & 14 Others [2012] eKLR, the Court held:“........A statement made on oath should as a matter of fact be expressly denied on oath. If not challenged, it remains a fact and the truth for that matter." 23.The allegations in the Respondent/Applicant's supporting affidavit therefore stand uncontroverted. I draw the inference that the delay is deliberate and inexcusable. 24.In Salkas Contractors Ltd V Kenya Petroleum Refineries Ltd (2004) eKLR, the Court stated:“...if the court is not satisfied that the inordinate delay is excusable then it will, again in its discretion, allow the application and dismiss the suit for want of prosecution." 25.The Respondent/Applicant has been denied the fruits of a lawful judgment for over four (4) years since the judgment was delivered. She has been unable to access compensation awarded to her for serious personal injuries sustained in a road traffic accident. 26.In Nyamato V Omondi (Civil Appeal E189 Of 2022) [2024] KEHC 7201 (KLR), the Court observed:“......As a result of the delay, there is a substantial risk that it is not possible to have a fair trial as the delay is likely or has already caused serious prejudice to the respondent."28. I find that the Respondent/Applicant has suffered prejudice. 27.Having satisfied all three limbs of the test in Ivita v Kyumbu (supra), I find that the Respondent/Applicant has made out a proper case for dismissal of the appeal for want of prosecution. 28.The Appellant/Respondent obtained a stay of execution from the trial court on condition that she deposit the decretal sums in a joint interest-earning account. The purpose of this deposit was to secure the Respondent/Applicant's claim pending the hearing and determination of the appeals. 29.Having found that the appeal should be dismissed, there is no longer any justification for retaining the decretal sums in the joint account. 30.In Protein And Fruits Processors Limited & Another V Diamond Trust Bank Kenya Limited [2015] eKLR, the Court affirmed that where an appeal is dismissed for want of prosecution, the successful litigant is entitled to the amount held as security. I therefore find it just to order the release of the decretal sums to the Respondent/Applicant. 31.Costs follow the event. The Respondent/Applicant has been compelled to move this Court due to the Appellant/Respondent's inaction. The Application has succeeded. The Appellant/Respondent shall bear the costs of this Application. 32.For the foregoing reasons, I make the following orders:a.This appeal is hereby dismissed for want of prosecution.b.The decretal sum of Kshs. 1,006,925 together with all accrued interest held in the joint interest-earning account at NCBA Bank Account No. 884xxxxx26 in the names of Elizabeth Wangari & Murimi Ndumia, Mbago & Muchela Advocates, being the security deposited in respect of NAKURU CMCC NO. 170 OF 2019, to be released and paid to the Respondent/Applicant, i.e through their advocates M/s Elizabeth Wangare & co. Advocates.c.The Appellant/Respondent shall bear the costs of this Application.d.These orders shall apply to NAKURU HCCA NO. E112 OF 2023 in respect of the decretal sum of Kshs. 1,113,428 together with all accrued interest held in the joint interest-earning account at NCBA Bank Account No. 884xxxxx26 in the names of Elizabeth Wangari & Murimi Ndumia, Mbago & Muchela Advocates, being the security deposited in respect of NAKURU CMCC NO. 171 OF 2019. DATED, SIGNED, AND DELIVERED AT NAKURU THIS 9TH DAY OF JULY, 2026.J. K. SERGONJUDGEIn the presence of:Jamleck/Rutoh – C/AMukira for the Respondent/Applicant