[2019] KEHC 5852 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

CIVIL APPEAL NO. 16 OF 2017

RASMIYYAH KHALIFA.........................1ST APPELLANT/RESPONDENT

SALIM THOYA........................................2ND APPELLANT/RESPONDENT

VERSUS

MASDEN DOUGLAS.......................................RESPONDENT/APPLICANT

RULING

[Respondent’s Chamber Summons Application

dated 20th August, 2018]

1. The Respondent, Douglas Karisa has filed the Chamber Summons dated 20th August, 2018 pursuant to sections 1A(1) and 1B(1)(d) of the Civil Procedure Act, Cap. 21 and Order 17 Rule 2(1), (3) and (4), Order 42 Rule 35(1) and (2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and prays for the dismissal of the appellants’ appeal for want of prosecution. He also prays for costs of the suit.

2. Briefly, Rasmiyyah Khalifa and Salim Thoya, the appellants, who are now the respondents in respect of the instant application, filed their memorandum of appeal on 15th March, 2017 against the decision delivered on 14th February, 2017 by the trial Court. They took no further action until the instant application was filed.

3. It is the Applicant’s case that the respondents have not filed and served a record of appeal; that the delay in preparing the record of appeal is inordinate; and that the respondents have lost interest in the appeal. The Applicant therefore urges this Court to dismiss the appeal.

4. The respondents opposed the application on the grounds that the application does not meet the legal requirements for dismissal of an appeal and that the delay is not inordinate and is excusable in the circumstances of the case.

5. The application was disposed of by way of written submissions.

6. Counsel for the Applicant submits that there has been inordinate delay on the part of the respondents in taking steps to ensure that the appeal is heard within reasonable time.

7. It is also submitted for the Applicant that no record of appeal has been filed to date and neither have directions been taken under Order 42 Rule 11 of the Civil Procedure Rules, 2010 (CPR). The Applicant contends that the respondents, having filed their memorandum of appeal on 5th March, 2017, were duty-bound to take steps to have the record of appeal filed or move the Court for directions. It is submitted that having filed the memorandum of appeal the respondents ought to have filed the record of appeal within a reasonable time.

8. The Applicant further asserts that it is upon the respondents to give reasons for the delay which they have failed to do. The Applicant states that the respondents’ replying affidavit does not disclose any steps taken to prepare and file the record of appeal and neither have the respondents moved the Court for directions. It is the Applicant’s case that the respondents have not exhibited any document to show that they applied for proceedings from the trial Court and they cannot be allowed to blame the trial Court for the delay.

9. It is the Applicant’s position that a delay of 1½ years is inordinate and unreasonable. He posits that such a delay defeats the overriding objective of the CPR which is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes.

10. The Applicant contends that the delay in the disposal of the appeal is prejudicial to him as it denies him the right to enjoy the fruits of the judgment that was delivered in his favour. He therefore prays that his application be allowed.

11. Opposing the application, the respondents/appellants submitted that for an appeal to be dismissed for want of prosecution pursuant to Order 42 Rule 35(1) of the CPR, it must be established that directions have been issued under Order 42 Rule 13 of the CPR and the appeal has not been set down for hearing within three months from the issuance of the directions.

12. It is the respondents’ case that directions have not been issued by the Court under Section 79B of the Civil Procedure Act, Cap. 21 and the Court is yet to determine whether to admit the appeal or summarily reject it. According to the respondents, the chain of events provided for in Order 42 Rules 12 to 35 CPR can only be triggered once the said Section 79B has been complied with.

13. It is therefore the respondents’ assertion that the instant application is premature. Various cases are cited in support of the submissions. The cited cases are: Jurgen Paul Flach v Jane Akoth Flach, Nakuru Civil Appeal No. 119 of 2012; Kirinyaga General Machinery v Hezekiel Mureithi Ireri, HCC No 98 of 2008;andUAP Insurance Company Limited v Washington Company Ltd [2016] eKLR.

14. It is also urged that Article 159 of the Constitution requires courts not to give undue regard to technicalities but to do substantive justice. As to whether there has been unjustified inordinate delay, the respondents contend that the delay was caused by the failure of the trial Court to avail proceedings even after this Court had requested, through a letter dated 6th June, 2017, for certified copies of proceedings and original record.

15. The respondents therefore asks the Court to allow it to take action to have its appeal heard. The respondents urges the Court to be guided by the decision in Kajiado High Court Civil Appeal No. 2 of 2016 Pyramid Haulers Co. Limited v James Omingo Nyaaga and 3 others.It is the respondents’ position that justice can still be done despite the delay.

16. Order 42 Rule 35 of the CPR contains the law governing the dismissal of an appeal for want of prosecution. The Rule states:

“[Order 42, rule 35. ] Dismissal for want of prosecution.

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.

(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.”

17. The application before this Court is premised on Order 42 Rule 35(1) of the CPR. Under the said provision an application for dismissal of an appeal can only be made where directions have been issued under Order 42 Rule 13 of the CPR.

18. Directions under Section 79B of the Civil Procedure Act have never been issued in this matter. Pursuant to Order 42 Rule 11 of the CPR it was incumbent upon the respondents as the appellants to cause the matter to be listed within thirty days of the filing of the appeal before the Court for directions-see Section 79B of the Civil Procedure Act.

19. The respondents have pointed out that the proceedings have never been availed by the trial Court for purposes of preparing a record of appeal. The Applicant, however, has a point when he submits that the respondents have not tabled any evidence to show that they made any effort to secure proceedings from the trial Court.

20. Be that as it may, it is undisputed that directions have not been issued in the matter and an application to have the appeal dismissed is premature and without any basis – see Jurgen Paul Flach (supra). The instant application is therefore without merit and the same is dismissed.

21. No good reason has been given why the respondents have not caused the matter to be listed for directions. There is no evidence that they have followed up on the certified copies of the proceedings with the trial Court. The Applicant should not be left without a remedy simply because the respondents are reluctant to do that which is required of them by the CPR. In the circumstances, I direct the respondents/appellants to move the Court within 45 days from the date of this ruling, failure to which the Deputy Registrar of the Court shall list the matter for dismissal in accordance with Order 42 Rule 35(2) of the CPR.

22. The costs of the application will abide the outcome of the appeal.

Dated and Signed at Nairobi this 15th day of April, 2019

W. Korir,

Judge of the High Court

Dated, Delivered and Signed at Malindi this 2nd day July of 2019

R Nyakundi,

Judge of the High Court