[2015] KECA 378 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: KOOME, AZANGALALA & KANTAI, JJ.A)

CIVIL APPLICATION NO. NAI 180 OF 2014

BETWEEN

PETER HANDERSON……………………..........……1STAPPLICANT

JAMES DAVID ROBINSON……………….......….....2NDAPPLICANT

AND

RICHARD BELL……………………………….......1STRESPONDENT

CITY COUNCIL OF NAIROBI…………………….2NDRESPONDENT

Application to deem withdrawn the respondent’s notice ofAppeal Dated 13thFebruary, 2014 from the Judgment of the High Court of Kenya at Nairobi delivered by Hon. Justice George Vincent Odunga on 30thJanuary, 2011

in

H.C. MISC.CIVL APPLICATION NO. 3 OF 2011)

********************************

RULING OF THE COURT

Before us is a Notice of Motion stated to have been filed underrule 83of the thisCourt’s Rulesin which the applicants,PeterHandersonandJames David Robinson,seek orders:-

“1. THAT the 1stRespondent’s Notice of Appeal dated 13thFebruary, 2014 and filed on 14th February, 2014 be deemed to have been withdrawn.

2. THAT costs of this application be provided for.”

The application which is supported by the affidavit of Kenneth Kiplagatis brought on the main ground that since the filing of the Notice of Appeal by the 1st respondent, the time for lodging such an appeal has lapsed.

When the application came up for hearing before us on 8th July, 2015 Mr. Kiplagat, the learned counsel for the applicants, submitted that since the filing of the subject Notice of Appeal the sixty (60) days allowed by the Rules for filing appeal have since lapsed. Yet no appeal has been filed. Learned counsel also contended that the 1st respondent did not apply for a copy of proceedings in time and did not also copy the letter bespeaking proceedings to his firm. He further placed reliance upon what he had deponed in his own affidavit in support of the application.

Mr. Ouma, the learned counsel for the 1st respondent, submitted that in view of what he had deponed in his replying affidavit this application should fail. Learned counsel contended that the copy of proceedings supplied to his firm had a discrepancy which the firm intended to rectify. Learned counsel further submitted that striking out is a draconian power which should be exercised sparingly and certainly not under the circumstances herein.

We have considered the affidavits filed, the submissions of learned counsel and the authorities cited. From the material availed to us, we discern that the judgment intended to be challenged on appeal was delivered on 30th January, 2014. The respondent was aggrieved and filed a Notice of Appeal on 14th February, 2014 to challenge the said judgment. There is no issue relating to the time of filing or service of that notice. Ordinarily, the record of appeal ought to have been filed within sixty (60) days of lodging of the Notice of Appeal by dint of rule 82(1)of our rules. But no appeal was filed within that period. It would appear from the annextures to the replying affidavit that copies of proceedings and judgment were not ready until the advocates for the 1st respondent were notified by the court on 26th March, 2015 that they could collect and pay for them. The replying affidavit does not state when the said proceedings and judgment were collected by the 1st respondent’s advocates. The replying affidavit instead depones to the obvious that our rules contemplate the filing and serving of a record of appeal out of time and that the delay in filing the record of appeal in this case is not inordinate.

Although Mr. Ouma stated from the bar that the copy of proceedings supplied has a discrepancy, he did not identify the discrepancy, indeed copies of the proceedings and judgment were not exhibited at all. Besides, no single paragraph of the replying affidavit was devoted to the alleged discrepancy. The fact of the matter therefore is that there is no explanation offered for the delay in filing the memorandum of appeal and record of appeal pursuant to the Notice of Appeal filed on 14th February, 2014 at any rate since the proceedings and judgment were ready for collection on 26th March 2015.

No application to arrest the delay has been filed since 26th March, 2015. The delay continues to accumulate even after this application was served and heard on 8th July, 2015. There is no evidence that any application to enlarge time within which to file the record of appeal has been made. The plea of learned counsel for the 1st respondent that underSections 3Aand3Bof theAppellate Jurisdiction Act Cap 9of theLaws of KenyaandArticle 159 (2) (d)of theConstitution 2010,the court should disallow this application carries no weight. Those provisions do not permit procedural improprieties. Under those provisions, the court in its discretion, weighs the prejudice which would likely be suffered by the innocent party and weighs it against the prejudice which would be suffered by the offending party if the court strikes out the impugned document. See Abdirahman Abdi also known as Abdirahman Muhamed Abdi -v- Safi Petroleum Products Ltd. & 6 Others [Civil Application No. 173 of 2010] (UR).As observed above, here the 1st respondent has taken no action in respect of the matter even by the time this application came up for hearing before us. In our view the inaction of the 1st respondent since the proceedings and judgment were ready for collection on 16th March, 2015, which inaction continues to date, disentitles the 1st respondent the exercise of discretion in his favour.

In the premises we are satisfied that the application made before us is well merited. We grant it as prayed and order that the notice of appeal dated 1st February, 2014 and lodged on 14th February, 2014 be and is hereby struck out. Costs of the application shall be borne by the respondent in the application.

DATED AND DELIVERED AT NAIROBI THIS 25THDAY OF SEPTEMBER, 2015

M.K. KOOME

………………………

JUDGE OF APPEAL

F. AZANGALALA

………………………

JUDGE OF APPEAL

S. ole KANTAI

………………………

JUDGE OF APPEAL

I certify that this is a

true copy of the original

DEPUTY REGISTRAR