[2022] KEHC 98 (KLR)

Pembe Flour Mills Limited v Multiple Hauliers (EA) Limited (Civil Appeal 100 of 2019) [2022] KEHC 98 (KLR) (7 February 2022) (Ruling)

Neutral citation: [2022] KEHC 98 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 100 of 2019

MW Muigai, J

February 7, 2022

Between

Pembe Flour Mills Limited

Appellant

and

Multiple Hauliers (EA) Limited

Respondent

Ruling

Notice of Motion by the Respondent Dated 26th July, 2021 1. The Court grants leave to the Respondent to file and serve this application out of time;

2. That this Court strikes out the Appellant’s Record of Appeal dated 2nd March, 2020;

3. That this Court finds that there is no appeal pending before this Court; and

4. Costs for this application be provided.

Supporting Affidavit 5. In the said appeal, the Appellants filed a Memorandum of Appeal on the 18th July, 2019 and proceeded to file a Record of appeal on the 2nd March, 2020. Two hundred and twenty-one (221) days later outside the stipulated time frame set out in Rule 87 of the Court of Appeal Rules.

6. Despite the Appellant having knowledge of the un-availability of typed proceedings the Appellant failed to take out a Certificate of Delay as stipulated under Rule 82(1) of the Court of Appeal Rules.

Replying Affidavit 7. That being aggrieved by the said judgement, the Appellant instructed the firm of Mose, Mose & Milimo Advocates to prefer an appeal against the judgment vide a Memorandum of Appeal dated 25th July, 2019 and filed in Court on 26th July, 2019 and not on 23rd July, 2019 as alleged by the Applicant.

8. That the Appellant was advised by his Advocate on record which advise he verily believed to be true that the said Notice of Motion application dated 26th July, 2019 is in relation to the Court of Appeal at Machakos Civil Appeal No. 100 of 2019 of which they are not party to rendering the said application fatally defective since ours is a Civil Appeal in the High Court of Kenya at Machakos Civil Appeal No. 100 of 2019.

9. That the Appellant was informed by their advocates on record which information they verily believe to be true that the Record of Appeal was prepared and filed vide High Court at Machakos Civil Appeal No. 100 of 2019 and served upon the Respondent on the 18th March, 2020 and for the Respondent to make this application more than one year later is just but trying to frustrate the said appeal herein.

10. That the Appellant was informed by their advocates on record which information they verily believe to be true that they had caused the said appeal to be listed for directions on 4th May, 2021 and were notified by their advocates on record vide a letter dated 8th March, 2021.

11. That the Appellant was informed by their advocates on record which information they verily believe to be true that on the said 4th May, 2021 the Trial Court was not sitting and there was a notice by the Court.

12. That the said application dated 26th July, 2021 was filed in Court on 29th July, 2021 the same indicates that it was in Court on 12th October, 2021 but neither were they served with the said application nor the hearing date for the same and that the said application was served upon the appellant of 1st November, 2021.

13. That the Appellant was informed by their advocates on record which information they verily believe to be true that the Respondent herein was trying to duel on technicalities contrary to Article 159 (2)(d) & (e) of the Constitution of Kenya 2010.

14. That no prejudice whatsoever or at all shall be visited upon the Respondent if the appeal herein is set down for direction in the said appeal since the full decretal sum of Kenya shillings 1,577,782/- was paid fully as per the decree drawn by the Plaintiff/Respondent herein.

Appellants Written Submissions Whether the application is fatally defective 15. It is submitted that the Notice of Motion application dated 26 July, 2021 is in relation to the Court of Appeal No. 100 of 2019 and the appellant is not party to the said suit. The Appellant is party to Civil Appeal in the High Court of Kenya at Machakos Civil Appeal No. 100 of 2019.

16. That the application is incompetent and fatally defective as it alludes to a case in which the Appellant is not party to. This cannot be salvaged by the provisions of Article 159 of the constitution as the application is fatally defective.

Whether the respondent is dwelling on technicalities 17. It was submitted that Article 159 (2) (d) of the Constitution states that:“In exercising judicial authority, the Courts and tribunals shall be guided by the following principles-(a)Justice shall be administered without undue regard to procedural technicalities.”

18. In the case of Kenya Ports Authority v Kenya Power & Lighting Co. limited [2012] eKLR Mwongo – J defined procedural technicalities as:“Combining the meaning of these words, “procedural technicalities” may be described as those that more concern the modes of proceedings and the rules involved that regulate formality and processes rather than substantive rights under law. This may not be and all encompassing definition, but I think people generally associate procedural technicalities with annoying structures and rules which hinder the achievement of substantial justice.”

19. That as seen from a plethora of cases and the Constitution. Although, the Civil Procedure Respondents in the appeal will not suffer any prejudice by the matter proceeding to full hearing of the appeal that the Appellant on the other hand will suffer untold prejudice if the matter is struck out on a technicality in that the issues complained of will remain unheard. It is not just and proportionate for the appeal to be struck out for failure to comply with minor rules of procedure and therefore submit and urge the court to accord precedence to substance over form so as to save the appeal so that it can be determined on merits.

20. In the case at hand the applicant herein drew a decree and executed the same fully and the defendant herein paid the decretal sum as drawn and demanded by the applicant. The Plaintiff in the primary suit Mavoko CMCC 288 of 2016 now wants to amend a decree and execute the same to the detriment of the defendant appellant.

21. It is trite law that justice should be administered without undue regard to technicalitiese Rules provide time within which a Notice of Appeal and Memorandum of Appeal should be filed, the Court has power to extend the time. It is our humble submissions therefore that this Court dismisses the application by the Respondents with costs to the Appellant.

Oral Submissions By Respondent 22. The Respondent submitted that the Judgment of the Trial Court in Civil Case No 288 of 2016 was delivered on 27th November 2020 pursuant to a decree drawn by both Appellant and Respondent and was not contested and the decree is partly performed and executed. There is therefore no appeal pending on the main suit.

23. Whereas the Appellant has the right of appeal, the appeal ought to be pursued timeously and the memorandum of appeal ought to have been filed with a certificate of delay which has not been provided. The Respondent objected to hearing and determination of any appeal as no action was taken since July 2021.

Determination 24. The issue is whether the pending appeal ought to be heard or dismissed for want of prosecution due to inordinate delay?The Trial Court’s judgment was on 25th February 2019 for Ksh 1,353,492/- in favour of the Plaintiff against the Defendant, and thereafter was an application for stay of execution under Certificate of urgency filed on 6th March, 2019. Another Application was filed on 4th April 2019 to amend the decree of 27th February 2019 and another application of 24th April 2019 to review and amend the decree of 27th February 2019.

25. The appeal through Memorandum of Appeal was filed on 25th July 2019, accompanied by the lower Court file PMs Court 288 of 2016. There seems to have been confusion and/or mistake as to the filing of Court of Appeal at Machakos Civil Appeal 100 of 2019 instead of High Court Civil Appeal 100 of 2019.

26. There also seems to have been delay in obtaining certified proceedings as evidenced by letter dated 2nd August 2019. The proceedings were availed and matter was slated for directions on 4th May 2021but the High Court was not sitting as per copy of Notice attached that indicated that the Court was officially away on duty.

27. The cumulative effect is that although the appeal was filed 2 years ago and has not been prosecuted due to myriad reasons, there were various applications, the Appellant is not wholly to blame, it took time obtaining typed proceedings, obtaining dates for directions and the Court was assigned official duties away from Court during a mention/hearing date.

28. The Applicant’s claim as to delay of prosecuting this appeal is fortified by the law; Order 17 CPR 2010, Section 1A 1B & 3A of Civil Procedure Act & Article 159 CoK 2010 which provide as follow;Order 17 CPR Rule 2(1)2(1)In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit...............................(4)The court may dismiss the suit for non-compliance with any direction given under this Order.(5)A suit stands dismissed after two years where no step has been undertaken.Section 1(A) objective of Act-the overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.Section 1B Duty of Court-For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—............................(b) the efficient disposal of the business of the Court;...........................Section 3A saving of inherent powers of court.Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.Article 159 CoK Section 2In exercising judicial authority, the courts and tribunals shall be guided by the following principles—(b)Justice shall not be delayed

29. The justice of the case calls for expeditious disposal of the appeal, the decree-holder is not prejudiced as the decree is partly executed/performed.

Disposition1. The Application of 29th July 2021 is compromised in the following manner;2. The appeal shall be disposed off within 60 days from date of Ruling3. Directions for hearing and determination of the appeal are that each party files written submissions 14 days each exchange and file physical copies through DR MHC.4. The matter shall be mentioned after 30 days for highlighting or adoption of written submissions and Ruling/judgment date granted.5. In default of any of the processes without revision, the appeal shall stand dismissed after 60 days.

DELIVERED SIGNED & DATED IN OPEN COURT ON 7THFEBRUARY 2022 (VIRTUAL CONFERENCE).M. W. MUIGAIJUDGEIN THE PRESENCE OF:NO APPEARANCE- FOR THE APPELLANTMR. KOKEBE - FOR THE RESPONDENTGEOFFREY - COURT ASSISTANT