[2023] KEHC 19226 (KLR)

Sheba v Mwatsuma (Family Appeal E009 of 2020) [2023] KEHC 19226 (KLR) (26 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19226 (KLR)

Republic of Kenya

In the High Court at Mombasa

Family Appeal E009 of 2020

G Mutai, J

June 26, 2023

Between

Hassan Mwakongoni Sheba

Appellant

and

Kashi Rashid Mwatsuma

Respondent

Ruling

1. The Appellant filed the appeal on 16th November 2020 against the decision of the Honourable Kadhi HS Vumbi in Kadhi Court Cause No. 189 of 2020; Kashi Rashid Mwatsuma versus Hassan Mwakongoni Sheba.

2. Despite filing the Appeal the Appellant failed to file the Record of Appeal. On 15th November 2021 the Respondent filed a Notice of Motion dated 15th November 2021 vide which she sought: -1. That the Appeal filed herein be dismissed for want of prosecution by the Appellant;2. That in the alternative the Appellant herein be ordered by this Honourable Court to deposit in Court, a reasonable security for due performance, more particularly the entire awarded decretal amount (Kes.500,000. 00 & Kes. 45,000. 00) for his present appeal to proceed further and or as the Hon. Court shall so order; and3. That costs of this application be provided for, and the same to be borne by the Appellant.

3. The application was grounded on the fact that despite the appeal having been filed more than a year before the instant application was lodged the Appellant had not taken steps to prosecute it. It was urged that delay was inordinate, unreasonable and in excusable and greatly prejudiced the Respondent. She thus prayed that the appeal be dismissed.

4. The Appellant/Respondent didn’t file a Replying Affidavit or Grounds of Opposition. On 13th July 2022 Onyiego J admitted the appeal and ordered the Appellant/Respondent to file a Record of Appeal within 30 days. The said orders notwithstanding, the Appellant has still not filed the said Record of Appeal.

5. The application came up for hearing on 28th March 2023. On the said date Mr. Kenzi for the Appellant/Respondent conceded that they hadn’t filed the Record of Appeal. He sought leave to peruse the Court file and file submissions on behalf of the Appellant/Respondent.

6. On 11th May 2023 Ms. Wambua, holding brief for Mr. Kenzi for the Appellant informed the Court that they had filed Written Submissions. I have seen the said Written Submissions. They are in respect of the main appeal and make arguments in favour of overturning the decision of the Kadhi. I have not seen the submissions filed by the Appellant/Respondent in opposition to the application before me.

7. I have considered the said application, the applicable law and the decided cases. Upon doing so I have reluctantly decided to exercise my discretion by giving the Appellant/Respondent one more chance to prosecute his case. I am guided by the decision of the Court inIvita v Kyumbu [1984] KLR 441 where it was held that“The test is whether the delay is prolonged and inexcusable and, if it is, can justice be done despite such delay.”

8. In Mwangi S. Kimenyi v the Attorney General; Civil Suit Misc. No 720 of 2009 where the Court stated as follows: -“… the acceptable test is that;1)When the delay is prolonged and inexcusable, such that it would cause grave injustice to the one side or the other or to both, the court may in its discretion dismiss the action straight away. However, it should be understood that prolonged delay alone should not prevent the court from doing justice to all the parties- the plaintiff, the Defendant and any other third or interested party in the suit; lest justice should be placed too far away from the parties.2)Invariably, what should matter to the court, is to serve substantive justice through judicious exercise of discretion which is to be guided by the following issues; 1) whether the delay has been intentional and contumelious; 2) whether the delay or the conduct of the plaintiff amounts to an abuse of the court; 3) whether the delay is inordinate and inexcusable; 4) whether the delay is one that gives rise to a substantial risk to fair trial in that it is not possible to have a fair trial of issues in action or causes or likely to cause serious prejudice to the Defendant; and 5) what prejudice will the dismissal cause to the plaintiff. By this test, the court is not assisting the indolent, but rather it is serving the interest of justice, substantive justice on behalf of all the parties.

9. It does appear to me that the Appellant/Respondent has been indolent. The delay in filing the Record of Appeal has been long. I have not seen an explanation for the said delay. The lower Court file available. The foregoing notwithstanding it would be in the interest of justice if the instant matter is determined on merits. It is my view that justice can still be done despite the delay.

10. In light of the foregoing I make the following orders: -1. I dismiss the Notice of Motion application dated 15th November 2021;2. I award the Respondent/Applicant costs of Kes.15,000. 00; and3. I direct the Appellant/Respondent to file and serve the Record of Appeal within 30 days failing which the instant appeal shall stand dismissed.Orders accordingly.

DELIVERED, DATED AND SIGNED THIS 26TH DAY OF JUNE 2023 AT MOMBASA VIA MICROSOFT TEAMS..................................GREGORY MUTAIJUDGEIn the presence of:-The Respondent/Applicant – AbsentNo appearance for the Appellant/RespondentMr. Arthur – Court Assistant