[2017] KEHC 2502 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

CIVIL APPEAL NO. 183 OF 2008

SOMENI INDUSTRIES LIMITED..................... 1ST APPELLANT

DAVIES MUNYI GUYA................................... 2ND APPELLANT

-VERSUS-

FRANK JAPHETH NJAGI..................RESPONDENT/APLICANT

RULING

The Respondent/Applicant herein filed a Chamber Summons dated 18th May, 2010 under the provisions of Order XLI Rule 31 (1) and (2) of the civil procedure Rules seeking orders that the Appeal lodged by the Appellants be dismissed for want of prosecution and the costs of the application be awarded to the Respondent/Applicant. The application is supported by the Affidavit of LUCAS LEPERES NAIKUNI, counsel for the Respondent/Applicant dated 18th May, 2010 and on the grounds that; since the Memorandum of Appeal was filed on 15th April, 2008, the Appellants have not taken any steps to set down the appeal for hearing, and that the Appellants have not caused the appeal to be admitted.

In a Replying Affidavit sworn on 28th October, 2010 and sworn by BERNARD WACHIRA KIBANYA, the Appellants’ Advocate, the Appellants opposed the application and avers that after the ruling was delivered on 20th March, 2008, their Advocate applied for and paid for the copies of the proceedings and ruling. He has annexed a copy of the letter and payment receipt. Also annexed to the Affidavit is a letter dated 21st April, 2008 written by the Deputy Registrar of this court to the Executive Officer Milimani Commercial Courts requesting for the original record of the lower court.

On 9th June, 2010 the Appellants’ Advocates wrote to the Senior Resident Magistrate seeking his indulgence to have the lower court file delivered to the civil appeals registry to enable them prosecute the appeal. Therefore, the Appellants aver that the delay has been caused by failure of the lower court to transmit the record to the High court registry. The Appellants further avers that the application is premature as the provisions of order XLI Rule 31 (1) relating to directions have not yet been complied with.

The application was canvassed by way of written submissions. The Respondent submitted that there has been inordinate delay in prosecuting the appeal due to lack of interest by the appellants to pursue the same. In their submissions, the Appellants pleads with this court to order the chief magistrate to immediately provide them with the requisite proceedings following which, they shall file the record of appeal within 14 day of being so provided.

The law relating to dismissal of Appeals for want of prosecution is contained in Order 42 Rule 35of the currentCivil Procedure Rules, 2010. The Rule provides:-

“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.”

My understanding of this rule is that before an Appeal can be dismissed on an application by the Respondent, the same ought to have been set down for directions and such directions issued in the first instance. This position was elaborated in the case of Suresh Ruginath Raniga & Another v Sagar Mohan S.M.Ram Civil Appeal no. 433 of 2012, where the court held that:

The Appellants’ counsel submitted that until and unless directions are issued, an Appeal cannot be dismissed for want of prosecution; and that the procedure of dealing with an Appeal where directions have not been issued is that contemplated in Order 42 rule 35(2) and not Order 42 rule 35(1). I am in agreement with these submissions. In the caseof Kirinyaga General Machinery v. Hezekiel Mureithi Ireri HCC No.98 of 2008 while interpreting Order XLI 31 (now Order 42 rule 35), Kasango J.,observed:-“It is clearly seen from that rule that before the respondent can move the court either to set the Appeal down for hearing or to apply for dismissal for want of prosecution, directions ought to have been given as provided under rule 8B. Directions have never been given in this matter. The directions having not been given the orders sought by the respondent cannot be entertained.”

From the record, I note that no directions have been issued in this Appeal Under Order 42 rule 35(1), I see no reason to deviate from the holdingin Kirinyaga General Machinery vs. Hezekiel Mureithi Ireri.This Appeal therefore cannot be dismissed for want of prosecution under Order 42 rule 35(1).

It is not in contention that in this case there has been delay in having this Appeal heard and determined but the Respondent herein has explained that the delay has been occasioned by the lower Court’s failure to deliver the file and proceedings to the High Court. The Appellants’ letters which have been annexed to the Affidavit clearly show that the appellants have been willing to prosecute the appeal save for delays by the lower court in availing its record and proceedings. Further the Appellants commits to set down the Appeal for hearing within 14 days of being availed with the typed proceedings and rulings.

Notwithstanding the provisions of Order 42 Rule 35and in spirit of section 3A of the Civil Procedure Act, which preserves the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the courtit would be in interest of justice to allow the Appellants a chance to take appropriate steps to ensure the Appeal is set down for directions and heard expeditiously. This Court also takes cognisance of the fact that the decretal sum is deposited in Court.

I note that this is an old Appeal which should be disposed of, at the earliest opportunity. I do order that the same be prosecuted within 120 days from today, failing which it shall stand dismissed.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 1stDay of November, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

for the 1st Appellant

for the 2nd Appellant

for the Respondent/Applicant