[2023] KEHC 23454 (KLR)

Ramesh Services Limited & another v Kuria & another (Civil Appeal 332 of 2014) [2023] KEHC 23454 (KLR) (Civ) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23454 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 332 of 2014

JN Mulwa, J

October 12, 2023

Between

Ramesh Services Limited

1st Appellant

Joseph Ndichu Kamau

2nd Appellant

and

Rose Wambui Kuria

1st Respondent

Stephen Maina Macharia

2nd Respondent

Ruling

1. This is a Ruling in respect to the Appellants Notice of Motion application dated November 14, 2022 brought pursuant to Article 159 of the Constitution of Kenya, Section 3A, 80 and 95 of the Civil Procedure Act and Order 50 of the Civil Procedure Rules. The Applicants seek the following orders:1. That this matter be consolidated with Milimani HCCA 332A of 2014 -Ramesh Services Ltd & Anor v Rose Wambui Kuria for purposes of the orders sought.

2. That the Honourable Court be pleased to stay, set aside and/or review the orders made on June 17, 2020 and extend the period for hearing and determining the Appeal.

3. That the Honourable Court be pleased to reinstate the suit and the same be heard on priority basis.

4. That the Honourable Court be pleased to direct that the Appeal be disposed of by way of written submissions and/or on orders the Honourable Court will be pleased to grant.

5. That prayer 2, 3 and 4 of this Application do apply to Milimani HCCA 332A of 2014 Ramesh Services Ltd & Anor v Rose Wambui Kuria.

6. That costs of this Application abide in the respective Appeals.

2. The application is predicated on the grounds set out on its face and supported by the annexed Affidavit of the Applicants’ Advocate Kinyanjui Theuri.

3. The application was opposed by way of Grounds of Opposition dated January 24, 2023.

4. The court has considered the orders sought, the Affidavit in support thereof, the Respondents’ Grounds of Opposition as well as the parties’ respective submissions and flags issues that fall for determination thus:1. Whether there was an order made on June 17, 2020 by this court that is capable of being stayed, reviewed or set aside.2. Whether the prayer for reinstatement of the appeal is merited

3. Who should bear the costs of the application?Whether there was an order made on June 17, 2020 by this court that is capable of being stayed, reviewed or set aside?

5. On the first issue, the court notes that the Appellants have not annexed the Order purportedly made by this court on June 17, 2020 to enable the court to appreciate its contents, if any. It is noteworthy that Section 80 of the Civil Procedure Act and Rule 1 to Order 45 of theCivil Procedure Rulesrefer to review of “a decree or order from which an appeal is allowed but has not been preferred “or” a decree or order from which no appeal is allowed.” An Order is defined in Section 2 of the Civil Procedure Act as “the formal expression of any decision of a court which is not a decree, and includes a decree nisi.” “Decree” on the other hand, is defined to mean “the formal expression of an adjudication which….conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final…”.

6. Did any Order emanate from the court proceedings of June 17, 2020? The answer to this question can only be reached upon appreciating the proceedings of the said day which are reproduced verbatim as hereunder:“Corum: Hon. Njuguna J (online)Muturi CAMiss Obaga for the RespondentMr Otury for the Appellants.Mr Otury: It is for directions. We have filed a Record of AppealMiss Obaga: We were served with the Record of Appeal but Aburili J. made Orders on March 10, 2015 for prosecution of the Appeal within 90 days. I believe the Appeal is spent.Mr Otury: The counsel who was handling the matter prior left our office. I was not aware of the orders. I pray for time to make the necessary application.Miss Obaga: I can only respond if an application has been made.Court: The file be returned to registryNjuguna J June 17, 2020”

7. From the court proceedings reproduced above, it is glaringly evident that the Court (Njuguna J.) did not make any Order on the said day that is capable of being reviewed or set aside but merely informed parties of the status of the appeal. Further, it is noteworthy that the court did not grant any positive order in favour of the Respondents which is capable of being stayed for fear of execution pursuant to the provisions of Order 42 Rule 6 of the Rules. In the premises, Prayer 2 of the Applicants application is hereby declined.

Whether the prayer for reinstatement of the appeal is merited? 8. Reinstatement of an appeal is an exercise of discretion which must be exercised judiciously. The principles governing reinstatement of a suit, which are equally applicable to appeals, were stated in the case of John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR as follows:“The fundamental principles of justice are enshrined in the entire Constitution and specifically in Article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court. These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need not multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such acts are comparable only to the proverbial ‘’Sword of the Damocles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a court of law should consider whether there are reasonable grounds to reinstate such suit-of course after considering the prejudice that the defendant would suffer if the suit was reinstated against the prejudice the Plaintiff will suffer if the suit is not reinstated.” [Emphasis added]

9. The Appellants prayer for reinstatement is grounded on the averments of their counsel in his Affidavit that on July 18, 2015, the court directed that the two related appeals (the instant one and HCCA 332A of 2014) be prosecuted within 90 days and further, that on June 17, 2020, the court confirmed that the file for the instant Appeal had been closed. The Respondents on their part contend that the instant appeal stood dismissed on June 10, 2015 when the Appellants failed to comply with a consent order of March 10, 2015 regarding the progression of the appeal.

10. By way of background, the Appellants instituted the instant appeal vide a Memorandum of Appeal dated July 30, 2014 filed on July 31, 2014. On March 10, 2015, parties recorded a consent before Aburili J. compromising the Appellants’ application for stay of execution and on the progression of the appeal as follows:“1)By consent, the application dated December 10, 2014 be compromised in the following terms…2)….3)The appellant to prepare, file and serve the Respondent with a record of appeal and do all that is necessary to ensure the appeal herein is ready for hearing within 90 days from the date hereof.4)In default, execution to issue.5)Costs of the application shall be in the appeal.6)Mention on June 9, 2015 to confirm compliance.”

11. The Appellants went on and filed their Record of Appeal on June 2, 2015 but it appears that they did not fully comply with the terms of the consent as the Respondents went ahead and filed an application dated September 8, 2015 seeking to execute the lower court judgment. On October 27, 2015, counsel for the Appellants sought more time to fully comply with the terms of the consent. Counsel for the Respondent agreed to the request and as such, Aburili J granted the Appellant 14 days to file a supplementary Record of Appeal to include the Decree from the subordinate court. The court also issued further orders regarding the depositing of the decretal sum in an interest earning account with a rider that execution would issue in default of compliance. The Appellants failed to comply with the latter orders once again and when the Respondents attempted to execute, they filed another application for stay of execution.

12. What the court notes however is that nowhere in the court record and/proceedings was it indicated that the appeal would stand dismissed in the event of non-compliance with any of the orders above. Further, the record does not contain proceedings for 18th July 2015 as insinuated by the Applicants. More importantly, there is nothing on record to show that the appeal was dismissed at any point in time whether for non-compliance with orders, non-attendance or want of prosecution. The proceedings for June 17, 2020 cannot be interpreted to mean that the court insinuated that the file for the instant appeal had been closed. The record is very clear that the court only ordered for the file to be returned to the registry presumably because there had been no action in the file.

13. What this means is that the order for reinstatement has no legs to stand on as the appeal, despite having been inactive, has never been dismissed for whatever reason. It suffices to reiterate at this point that there was no order for automatic dismissal of the appeal for non-compliance with any of the orders that were issued. The prayer for reinstatement cannot therefore be granted as sought as the appeal is still alive but inactive before this court.

14. Notably however, it is evident that the Appellants have lost interest in the appeal as they have never taken any tangible steps to prosecute it since they filed it over 9 years ago. The fact that the Appellants are not even certain about the status of their own appeal speaks to their disinterest in the appeal. This is no doubt very prejudicial to the Respondents as they have been kept away from the fruits of their favourable judgments all this while and is thus a clear case of ‘justice delayed is justice denied’.

15. The upshot is that the prayer for reinstatement of the appeal cannot be granted.

16. For the foregoing, the Applicants application dated November 14, 2022 lacks merit and is hereby dismissed with costs to the Respondents.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF OCTOBER 2023. JANET MULWAJUDGE