[2017] KEHC 2137 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CIVIL APPEAL NO. 2 OF 2016

PYRAMID HAULIERS CO. LIMITED..……………...….….…………….…PLAINTIFF

-VERSUS-

JAMES OMINGO NYAAGA……….....…………..….….1ST RESPONDENT/APPLICANT

VINCENT KINYUA………………………………...……………………2ND RESPONDENT

GEORGE OLANDO…………………………………………………….3RD RESPONDENT

THE HON. ATTORNEY GENERAL (Being sued

on behalf of the Commissioner of Police …………………..…4TH RESPONDENT

RULING

James Omingo Nyaaga the applicant herein filed a notice of motion under Order 42 Rule 13 and Rule 35 sub-rule (1) and (3) of the Civil Procedure Rules and Section 1A, 1B and 3A of the Civil Procedure Act seeking the following orders:

(1) That the appellant’s appeal be dismissed for want of prosecution.

(2) That the appellant bears the costs.

The applicant contends that the appellant filed the memorandum of appeal way back on 22. 1.2016 but has since failed to serve the record of appeal. That it has been over a year since the memorandum of appeal was filed without the applicant being served with the record of appeal. The applicant further states that the appellant has neither taken any steps to set down the appeal for directions as per the Order 42 of the Civil Procedure Rules. That the appellant has a duty to prosecute the appeal to final conclusion failure to which this court should dismiss it for want of prosecution.

Subsequent to the filing of the notice of motion, the applicant also supported it by an affidavit in support sworn by Senteu Marianyi Eliud. Mr. Senteu Marianyi in his affidavit reiterated the grounds in the body of the notice of motion and blamed the appellant for the delay in prosecuting the appeal.

The respondent’s replying affidavit set out the grounds which have made it impossible to file and serve the record of appeal. A perusal of the replying affidavit the delay has been occasioned by the trial court failing to supply the typed court proceedings, the judgement and the decree, being the content which forms the record of appeal.

BRIEF FACTS AT THE TRIAL

James Omingo Nyaaga, the applicant herein filed a case against the appellant and two others jointly and severally vide plaint dated 23. 1.2007 at Kajiado Chief Magistrate Court. The civil claim in CMCC 11 of 2007 was premised on the facts that on or about 30. 12. 2004, 5. 1.2005 and 6. 1.2005 the appellant’s agent, servant, employee or director, wrongfully caused the 2nd respondent and 3rd respondent police officers attached to Kitengela police station to arrest the applicant/plaintiff and took him to custody on warped up charges that the applicant/plaintiff and taken him to custody on trapped up charges that the plaintiff had stolen ten (10) tyres being the property of the appellant.

Subsequently the case which was decided after a full trial entered judgement against the defendants/respondents jointly and severally on liability. The learned trial magistrate awarded Kshs.500,000/- as general damages and Kshs.95,000 as specials together with costs and interest at court rates.

At the hearing of the application directions were issued to have it disposed off by way of written submissions. The applicant was represented by Mr. Ogamba Advocate. The bone of contention by the learned counsel was that the appellant is guilty of laches for failure to file and serve the record. Secondly, the appeal has been pending since 22. 1.2016 when the appellant filed the memorandum of appeal and subsequent stay order of execution against the trial court judgment. Learned counsel further submitted the appellant has not raised any positive steps to have the appeal court take directions in the matter. According to learned counsel submissions, the appellant seemed to have abandoned the appeal hence the urgency of this application to dismiss it for want of prosecution.

In support of the submissions learned counsel invited the court to be guided by the provisions of Order 42 rule 13, and 35 of the Civil Procedure Rules which deals with timelines to be complied with by the appellant and in default sanctions available to the appeal court. Learned counsel further cited and relied on the holding of the following authorities to urge this court to consider the legal principles supporting the application for dismissal of the appeal for want of prosecution:

Mukisa Biscuit Manufacturing Company v Westend Distributors [1969] EA 696, Patrick v Batger & Company Ltd [1967] 2 ALL ER 657.

Finally learned counsel submitted that the indolent action by the appellant contravenes Sections 1A, 1B of the Civil Procedure Act on the overriding objective which is anchored on the duty to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes by the Act.

As a result of the delay, learned counsel submitted that the applicant has been denied justice which by itself is a violation of Article 159(2) (b) of the Constitution. The applicant’s counsel prayer is for the order of dismissal for want of prosecution.

On the part of the respondent/appellant Mr. Chigiti learned counsel submitted on four issues to challenge the application and orders sought by the applicant:

1) Whether justice can be done despite such a delay/whether the applicant will be highly prejudiced by the delay.

2) Whether the delay has been experienced by the applicant.

3) Whether the explanation is credible.

4) Whether the applicant has acted in violation of the overriding objective.

Mr. Chigiti submitted that the appellant has shown in the replying affidavit sufficient cause to justify the delay in prosecuting the appeal. Mr. Chigiti further submitted that the explanation which has occasioned the delay is due to lack of being supplied with the trial court proceedings and judgement.

In support of this ground learned counsel relied on Section 79G of the Civil Procedure Act on time for filing appeals from the subordinate courts and the requisite requirement to deliver a copy of the decree or order. Mr. Chigiti, further submitted that as evidence can demonstrate all efforts to be supplied with proceedings from the trial court registry have not been successful. Mr. Chigeti contended that the applicant’s application has not met the threshold that deserves the orders prayed for under Order 42 Rule 35(1) of the Civil Procedure Rules.

I have considered the notice of motion, affidavit in support and the replying affidavit by the respondents, the submissions by learned counsels and highlights of the issues on the respective legal positions has also been taken into account.

The main thrust of Mr. Ogamba’s application is that there has been inordinate delay on the part of the applellant in prosecuting the appeal.

ANALYSIS AND DETERMINATION:

William Shakespeare the world’s greatest English playwright in Hamlet Act III lamented on the delay issue in court proceedings exemplified by this statement:

“The Law’s delay’ is one of whips and scorns of time.”

Likewise in the Bar Review Journal Ireland Vol. 13 issue No.4 of 4. 7.2008. The contributor Thomson in an article on delay, informed consents/employment injunctions observed thus:

“The prolonged nature of modern litigation continues to be a source of torment; indeed, lengthy delays may make it impossible for a defendant to receive a fair trial”.

It is against this background I set out the applicable law in determining this application. I begin with the Constitution 2010 under Article 50 (1):

“Every person has the right to have any disputes that can be resolved by the application of the law decided in a fair and public hearing before a court or if appropriate another independent and impartial tribunal or body.

(2) (E) the right to have the trial begin and concluded without unreasonable delay.”

The Constitution does not provide information as to the length of time between the commencement of the action or charge to the date of conclusion of the case. The prescriptive period in civil claims has been deliberately left to the legislature.

In the present case the applicable law on the process of appeals is regulated by the Civil Procedure Act and Civil Procedure Rules. The relevant provision on dismissal of an appeal for want of prosecution is provided for under Order 42 Rule 35(1) which states:

“Unless within three months, after granting 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.

(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.”

In the instant application learned counsel for the applicant submitted that the provisions of Order 42 Rule 35(1) and (2) has not been complied with by the respondent. The arguments by learned counsel are that since filing of memorandum of appeal no positive significant step the appellant has taken to prosecute the appeal. On his part Mr. Chigiti contested that the issue is not an omission or negligence but the failure of the court to supply the record in accordance to Section 79G of the Civil Procedure Act.

There are two situations relevant to the facts of this case from the reading of Order 42 of the Civil Procedure Act and Rules; first, under Order 42 Rule 10 and 11 the appeal is deemed to be brought and filed before the appellate court. Secondly, when it is said to be filed and entered in the register the appellant shall within thirty days cause the matter to be listed before a judge for directions under Section 79B of the Act.

Going by the provisions of Section 79B the judge is to peruse the memorandum of appeal and the lower court record to infer whether sufficient grounds exist to interfere with the decree. In the event the judge is satisfied that no plausible grounds exist, the appeal is to be summarily dismissed.

The relevant aspect of this provision is the requirement for the appellant to schedule the appeal for directions even before the registrar compiles and transmits the record of appeal to the appeals’ court. The contention therefore by the applicant is that the appellant has not even attempted to comply with Order 42 Rule 10 and 11 of the Civil Procedure Rules.

In view of what is stated above, there is no dispute that the appellant has not approached the court since the filing and serving the memorandum of appeal. The manner in which the superior courts have approached the issue on delay has been well captured in the case of Eastern Province Kenya Ltd v Rongai Workshop & Transporters Ltd & Another [2014] eKLR and in Ikta v Kyumbu [1984] KLR 441by laying down the test to be applied.

“The test to be applied in application for dismissal for want of prosecution is whether the delay is prolonged and inexcusable, and if it is whether justice can still be done despite the delay.

Thus, even the delay is prolonged, if the court is satisfied with the plaintiff’s excuse for the delay and that justice can still be done to the parties, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest time. It is a matter of the discretion of the court.”

The rationale of this decision is the supremacy of the courts to exercise discretion not to deprive a party to a right to access court to pursue his claim which by reason of delay would not see the light of the day. This principle recognizes the fundamental rights and obligation of court of law is to do substantive justice between the parties.

When considering this application and the legal principles in the Eastern Province Kenya Ltd (Supra). The exercise of discretion by bearing in mind the following:

(1) Length of the delay by the appellant from the record:

The appellant filed the memorandum of appeal on 22/1/2016. It is over one year no directions have been taken before a judge in chambers under section 79B of the Civil Procedure Act. The appellant contended answer to this failure is absence of the proceedings.

In my judgement that is not what the law requires under Order 42 Rule 10 and 11.

(2) The reasons given by the appellant for the delay:

The replying affidavit and the learned counsel submissions contend with the same answer as in ground; one delay to obtain copy of proceedings, judgement and or decree. This court was presented with various correspondences to supply the appellant with the entire trial court record for purposes of pursuing the appeal. It is abundantly clear that the trial court has not even corresponded nor acknowledged the respondent letter on the issue.

The Kenyan constitution entrains rights to access to information held by the public officer. See Article 47 (1) of the Constitution. The longer delay in this particular case of over one year for the court not to supply the proceedings to the appellant is inexcusable. The reasons contributing to the delay to furnish the record to the appellant by the registrar of the trial court has not been provided at all.

The consequences that arise from the liability by the appellant to obtain the record cannot be washed away by invoking Order 42 rule 35 (1) of the Civil Procedure Rules. There is no dispute that the strength and prosecution of the appeal is to be based on the record. The delay of over one year on the appellant’s appeal cannot be separated in regard to the circumstances of the case from non issuance of the lower court record.

(3) The third issue deals with prejudice and whether justice can still be done:

It is generally acceptable that a functional system of justice is a chain where each of the actors must add value to the chain in setting their eyes to the procedure and legal requirements of the law. The primary concern of courts is to balance the competing interests and priorities between the parties to ensure the fair administration of justice.

In the instant case, there is a competing interest between the applicant who has obtained a judgement from a competent court on his claim. On the other hand the appellant as a result of the judgement has a right to seek redress and challenge the decision of the trial court. In the event this court refuses to extend time there will be denial of justice for the appellant to maintain the action.

Applying the principles discussed in this ruling there is no doubt that the applicant is guilty of a procedure default to adjudicate his appeal. However, from the explanatory given I am persuaded that some of the concerns raised are legitimate and beyond his control. This court therefore has the inherent power under Section 3, 3A and Order 50 rule 1 of the Civil Procedure Act and Rules to extend time and save the action from premature death. Under Order 50 rule 1, “the court may, on such terms as it thinks just, by order or extend or abridge the period within which a person is required by these rules or by any judgement, order, discretion to do any act in any proceedings.”

I am in agreement with this provision that the court has the jurisdiction to exercise discretion in the interest of justice in this case.

In Malcon Ben v Hon Daniel Toroitich Arap Moi & Another, the supreme court dealt with the concept of interest of justice as dealt with in section 16 of the Supreme Court Act and stated:

“Interest of justice as a criteria of decision making by the supreme court and other courts is already declared by the constitution in the national values and principles of governance in Article 10. ”

In Allen v Alfred & Sons [1968] 1 ALL ER 543 the court held interalia:

“What factors to take into account to ascertain whether the applicant would be prejudiced with the ultimate order. The varying factors include nature of the case, importance of the claim, rights of the parties etc.”

This is a claim arising out of malicious prosecution. The applicant was awarded general and special damages of Ksh.600,000 payable from the tax payers by virtual of the judgement. The appellant dissatisfied with the decision has applied to the high court for further consideration on the matter. I agree with the appellant that in the event the appeal is dismissed at this stage he will suffer prejudice and injustice. Secondly the injury caused by the delay on part of appellant is compensateable by way of payment of costs.

I accordingly dismiss the notice of motion dated 6/4/2017 and hereby order as follows:

(1) That the Deputy Registrar of the High Court supplies the trial court record to the appellant within 21 days from today’s date.

(2) That the record of appeal be served upon the applicant/respondents within 14 days from the 21 days allowed for its preparation.

(3) That the parties to appear before the Deputy Registrar to confirm compliance with the order.

(4) That the Deputy Registrar place the file before the judge in chambers for directions on or before 10/11/2017.

(5) That the costs of this applicant to abide the outcome of the appeal.

Dated, delivered and signed in open court at Kajiado on 18th day of September, 2017.

………………………………..

R. NYAKUNDI

JUDGE

In the presence of:

Mr. Naikuni for Mr. Chigiti for the respondent

Mr. Migos Ogamba absent

Mr. Mateli Court Assistant

Appellantpresent