[2022] KEHC 12199 (KLR)

Salim & another v Masinde (Civil Appeal E002 of 2021) [2022] KEHC 12199 (KLR) (13 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12199 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E002 of 2021

OA Sewe, J

June 13, 2022

Between

Salim Amir Salim

1st Appellant

Edward Otieno

2nd Appellant

and

Rashid Madwale Masinde

Respondent

Ruling

[1]Before the Court for determination is the Notice of Motion dated 21st April 2022. It was filed by the respondent pursuant to Article 159(2) of the Constitution, Sections 3 and 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya and Order 42 Rule 13 and 35 of the Civil Procedure Rules, 2010 for orders that this appeal be dismissed for want of prosecution; and that the costs of the application and the entire appeal be awarded to the respondent. The application was premised on the grounds that since the filing of this appeal on 7th January 2021, the appellant has refused, ignored, neglected and or failed to take any steps to have the appeal listed for directions for a period of over one year.

[2]It was further the contention of the respondent that the appellant has been enjoying the benefits of an order of stay of execution since 16th December 2020, thereby depriving him of the benefit of his judgment; and therefore that the continued pendency of the appeal is not only prejudicial to him, but is also oppressive. The respondent relied on the affidavit sworn on his behalf by his advocate, Mr. Bryan Mutugi, wherein counsel affirmed that the appellant filed a Memorandum of Appeal herein dated 4th January 2021 and thereafter obtained an order of stay of execution on the basis thereof, pending the hearing and determination of the appeal. Counsel further averred that, since then, the appellant has not taken any tangible steps with a view of effectively prosecuting the appeal with the same zeal he filed the Memorandum of Appeal and obtained stay of execution.

[3]In particular, counsel deposed that to date, the appellant is yet to file or serve the Record of Appeal on the respondent; and that it is over one year since the last step was taken in the appeal. He consequently prayed that the appeal be dismissed with costs for want of prosecution as its continued pendency is not only prejudicial to the respondent but is also amounts to pure abuse of the court process.

[4]The application was duly served on counsel for the appellant and an Affidavit of Service filed herein, sworn by Gordon Odhiambo Onyango, confirming that the firm of M/s Kimondo Gachoka & Co. Advocates was duly served with the application on 21st April 2022. The record further shows that, Mr. Salim who held brief for Ms. Khalifa on 27th April 2022 was duly notified of the hearing date of 26th May 2022. There was therefore no excuse for non-attendance by or for the appellant on 26th May 2022 when the application came up for hearing. Hence, as matters stand therefore, the application dated 21st April 2022 is entirely unopposed.

[5]Order 42 Rule 35 of the Civil Procedure Rules, pursuant to which the application has been brought, provides that:“(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”.

[6]In this case, directions are yet to be given for purposes of Rule 11 of Order 42. Consequently, the Deputy Registrar is yet to issue a notice to the appellant for purposes of Order 42 Rule 12 of the Civil Procedure Rules. The implication is clear; namely, that the delay appears to have been occasioned by the Court and not the appellant. Of course, the appellant has the responsibility of making a follow up to ensure prompt admission of the appeal. Thus, in China Road & Bridge Corporation v John Kimenye Muteti [2019] eKLR, Hon Odunga, J. took the view, with which I entirely agree, that nothing bars the Court from dismissing an appeal even where no directions have been given, if such a step is warranted in the interests of justice.

[7]From the facts hereof, I am not convinced that the delay has been contumelious or so prolonged as to warrant the dismissal orders sought. In the premises, it is my finding that the application is premature and is hereby struck out, with an order that the costs thereof be borne by the appellant in any event.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 13TH DAY OF JUNE 2022. ....................................OLGA SEWEJUDGE