[2017] KEHC 913 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA NAIROBI

CIVIL APPEAL NO. 555 OF 2014

SOUTH NYANZA SUGAR CO.LIMITED………………………………………APPELLANT

VERSUS

AUTOLITH LIMITED………………………………………………………..…RESPONDENT

RULING

The Respondent filed a Notice of Motion dated 27th March, 2017 under the provisions of Order 42 Rule 35 of the Civil Procedure Rules seeking orders that:

a)The Appeal filed herein be dismissed for want of prosecution;

b)The costs of this Application and those of the entire appeal be borne by the Appellant.

c)Any other order that this Court may deem fit and just to issue in the circumstances.

The Application is based on the grounds on the face of the same and its supported by the Affidavit of AMIT M. CHOTAI, a Director of the Respondent, wherein he avers that since the Appellant lodged the Memorandum of Appeal dated 9th December, 2014, it has not taken any steps to set down the appeal for hearing and over two years have lapsed. The Applicant further avers that they will be prejudiced if the orders are not granted and it is in the interest of justice that the litigation should come to an end.

In response to the application, the Respondent filed a Replying Affidavit sworn by NANCY D. AKINYI OUKO, an advocate for the Appellant. She avers that since the Appeal was filed, the Appellant has not been able to prepare the Record of Appeal as the registry has never been able to type the proceedings. That the Appellants effort’s to push for the typed proceedings bore no fruits as the file went missing from the registry’s typing pool. The Appellant has annexed correspondences to the Executive Officer seeking his indulgence to have the typed proceedings in order to prepare the record of appeal. The Appellant further avers that they are willing to proceed with the Appeal and prays that the typing of the proceedings be expedited as the decretal sum has already been deposited in a joint interest account.

The Application was argued orally in Court and I have considered the Affidavits by both parties and the oral submissions.

The law governing dismissal of an Appeal for want of prosecution is contained in Order 42 Rule 35 of the Civil Procedure Rules. 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 the Appeal can be dismissed, the same should have been set down for directions and such directions issued in the first instance. This position was espoused 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 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 rule35(1). I am in agreement with these submissions. In the case of Kirinyaga General Machinery v. Hezekiel Mureithi Ireri HCC No.98 of 2008 while interpreting Order XLI rule 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 to for want of prosecution under Order 42 rule 35(1).

The Appellant has argued that they have visited the registry several times in a bid to obtain the typed proceedings only to find that the proceedings are not ready and they could not trace the file in the registry. The Appellant has demonstrated that it has not been able to proceed with the Appeal because the typed proceedings are not ready and has annexed correspondences to that effect.

It is not in contention that there has been delay in having this Appeal heard and determined. However, the Appellant has explained the reason for the delay and has indeed requested the Court to make an order that the typing of the proceedings be expedited. I find that the prejudice that the Appellant will suffer if this Appeal is dismissed will be more than the prejudice that the Applicant/Respondent will suffer given that the Appellant has deposited the decretal amount. This was the position in Allan Otieno Osula v Gurdev Engineering &Construction Ltd [2015] eKLRthus:

“It is therefore on the above grounds that I decline to strike out the Appeal as prayed. I employ the principle that the right of Appeal is constitutional right and in as much as there has been delay which has not been satisfactorily explained by the appellant, this court has to weigh the cost and the prejudice that is likely to be occasioned to the appellant as well as the respondent, if the Appeal is struck out at this stage without according the appellant an opportunity to be heard on the merits of the Appeal.”

In the 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 court, it would be in interest of justice to allow the Appellant a chance to take appropriate steps to ensure the Appeal is set down for directions and hearing expeditiously.

In that regard, I decline to grant this Application and order that for expeditious administration of justice to both parties, the Appellant do file the Record of Appeal within 45 days from the date of the ruling. Thereafter, the Appeal be prosecuted within 90 days from the date of filling the Record of Appeal. Failure to comply with either of the two conditions, the Appeal shall stand dismissed. Costs of the application shall abide the outcome of the Appeal.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 6th day of December, 2017

………………………………..

L. NJUGUNA

JUDGE

In the presence of:-

……………….………………for the Appellant

……………………...............for the Respondent