[2023] KEHC 25365 (KLR)

Waithira & another v SA (A minor suing through the father and friend BOO) (Civil Appeal E701 of 2021) [2023] KEHC 25365 (KLR) (14 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25365 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal E701 of 2021

JN Njagi, J

November 14, 2023

Between

Rahab Muiruri Waithira

1st Appellant

Sheriff Ibrahim Mishsim

2nd Appellant

and

SA (A minor suing through the father and friend BOO)

Respondent

Ruling

1. The Applicant has filed an application dated 20th October 2022 seeking for the appeal herein be dismissed for want of prosecution on the ground that the Appellants/Respondents have for a period of one year since the filing of the memorandum of appeal failed to take active steps in setting out the appeal for directions. The Applicants contend that the delay is inordinate and inexcusable. That failure to prosecute the appeal is prejudicial to the applicant and denies her the opportunity to enjoy the fruits of the judgment. That the Appellants have lost interest in the matter and it is in the interest of justice that the appeal be dismissed for want of prosecution.

2. The application was opposed by the Appellants/Respondents vide the replying affidavit of their advocate, Victor Ng’ang’a, sworn on the 10th of January 2023 wherein he deposes that the Appellants are interested in pursuing the appeal. That the Appellants have complied with stay conditions imposed by the court of depositing into court a sum of Kshs 2,153,000/=. That the reason for not filing the record of Appeal is due to the fact that the Appellants have not been able to retrieve the typed proceedings from the court despite seeking the same through letters and visits to the court registry for follow-up. That they are thus not to blame for the delay. That the application is premature and is intended to defeat the ends of justice. That the Appellants have an arguable appeal and should be given an opportunity to have the same prosecuted and determined on its merits. Further that the Appellants are willing to abide by any orders of this court.

3. The appeal was canvased by way of written submissions. The Applicants submitted that the Memorandum of Appeal in the matter was filed on the 21st of October 2021 which is a year ago and yet the Appellants have not taken any step to prosecute the appeal. That the Appellants are not keen on prosecuting the appeal. That they have not adduced sufficient reason to warrant this court to exercise its discretion to their favor. The Applicants relied on the case of Malindi Salt Works Limited vs Rongai Workshop And Transport Ltd (2019 eKLR) where the court stated as follows:An appeal/case belongs to the plaintiff/Appellant. It is its duty to take steps to progress it to conclusion. Failure without plausible reasons for delay shows disinterest and subjects the appellant to prejudice and denies it enjoyment of its fruits of the judgment and therefore injustice to the respondent bearing in mind that it is the appellant who preferred the appeal against the respondent.

4. The Applicants further relied on the case of China Road and Bridge Corporation vs John Kimenye Muteti (2019) eKLR where the court stated that:19. It is therefore clear that it is upon the appellant to trigger the process of the giving of directions and an appellant who sits on his/her laurels and when confronted with an application to dismiss the suit contends that no directions have been given when he has not moved the court to give the said directions cannot but face censure from the court. To contend that an application for dismissal of an appeal is premature for failure to give directions when the appellant himself has not moved the court to give directions to my mind cannot be taken seriously where the delay is contumelious. Nothing bars the court from dismissing an appeal even where no directions have been given.

5. The Applicants urged the court to dismiss the appeal while making reliance on the case of Patco Industries Ltd vs Daniel Muli Musau (2022) eKLR where the court stated that:It would appear as if the appellant filed the Memorandum of Appeal hearing as an end in itself. This is a classical case of abuse of court process.

6. The Appellants on their part submitted that the Applicants will not suffer prejudice if the Appellants are given time to prosecute their appeal to finalization since the Appellants have complied with stay condition imposed by this court as the decretal sum has been secured by way of a bank guarantee thereby securing the interests of the Applicant.

7. It was submitted that the Appellants have demonstrated the hardship they have had in obtaining the proceedings from the Lower Court and which has in turn led to frustration of their effort to file the record of appeal. That the Appellants stand to suffer prejudice in the event that the appeal is not heard on merit since they will have lost their right to appeal.

8. The Appellants further submitted that the appeal has merit and in the event that the same is not heard to completion, they stand to lose their constitutional right to appeal and the right to have their case heard and determined on its merit.

9. The Appellants submitted that the appeal is not ripe for dismissal for want of prosecution as directions have not been taken in the matter. They made reliance on the case of Jurgen Paul Flach vs Jane Akoth Flach, Nakuru Civil Appeal No. 119 of 2012 where the court stated that where directions had not been issued, dismissal of an appeal for want of prosecution cannot be granted.

10. The Appellants further relied on the case of Kirinyaga General Machinery vs Hezekiel Mureithi Ireri (2007) eKLR where the court stated as follows;It is clearly seen from that rule 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 in Rule 8B. Directions have never been given in this matter. Directions having not been given the orders sought by the Respondent cannot be entertained.

11. Reliance was also made on the case of Allan Otieno Osula v Gurdev Engineering & Construction Ltd [2015] eKLR where it was held thus: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 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 circumstances, I shall invoke the overriding objective principle in Order to obviate the hardship expense, delay and focus on substantive justice. I find albeit there was delay that it is in the interest of justice that the appeal should not be struck out as the Respondent can adequately be compensated by an award of costs.

12. The Appellants also cited the case of Elem Investment Ltd vs John Mokora Otwoma (2015) eKLR where the court stated that;In my view the court will not dismiss an appeal for want of prosecution unless directions are issued…..In addition, the prejudice that the Appellant is likely to suffer if this appeal is dismissed is likely to be graver than the prejudice that the Applicant/Respondent would suffer if the appeal is ordered to proceed, given that the appellant has deposited the decretal amount in court and settled some of the undisputed costs. In arriving at that conclusion, am enjoined by the Court of Appeal decision in Abdurrahman Abdi v Safi Petroleum Products Ltd & 6 others [2011] eKLR, Civil Application No. Nai. 173 of 2010 where the Court stated:“The court has to weigh the prejudice that is likely to be suffered by the innocent party and weigh it against the prejudice to be suffered by the offending party if the court strikes out its document. The court in that regard exercises judicial discretion.”I think it would be appropriate and in the wider 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.

13. The Appellants urged the court to dismiss the application.

Analysis and Determination 14. The application is made pursuant to the provisions of Article 159(2) (d) of the Constitution on Kenya 2010; Section 1A,1B and 3A of the Civil Procedure Act and Order 42 Rule 13 and Rule 35(1) and (3) of the Civil Procedure Rules. The issue for determination is whether the appeal herein should be dismissed for want of prosecution.

15. The Civil Procedure Rules under Order 42 provides for the requisite procedures relating to the filing and determination of appeals. Order 42 Rules 11,12 and 13 state as follows:-“11. Upon filing of the appeal the appellant shall within thirty days, cause the matter to be listed before a judge for directions under section 79B of the Act.12. After the refusal of a judge to reject the appeal under section 79B of the Act, the registrar shall notify the appellant who shall serve the memorandum of appeal on every respondent within seven days of receipt of the notice from the registrar. 13. (1)On notice to the parties delivered not less than twenty-one days after the date of service of the memorandum of appeal the appellant shall cause the appeal to be listed for the giving of directions by a judge in chambers.

(2)Any objection to the jurisdiction of the appellate court shall be raised before the judge before he gives directions under this rule.

16. The law for dismissal of appeals for want of prosecution is provided under Order 42 Rule 35 of the Civil Procedure Rules which states as follows:-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 principles applicable for dismissal of suits for want of prosecution were stated by the Court of Appeal in Ivita –v- Kyumbu (l984) KLR 441 to be as follows:-QUOTE{startQuote “}The test applied by the Courts in an Application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is whether justice can be done despite the delay. Thus, even if the delay is prolonged if the Court is satisfied with the Plaintiff’s excuse for the delay and that justice can still be done to the parties, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest time. It is a matter in the discretion of the Court.”

18. Similarly, in the cases of Naftali Onyango v National Bank of Kenya (2005) eKLR and Mwangi S. Kimenyi v Attorney General, Civil Suit No. 720 of 2009 the Court held that for an application for dismissal of a suit for want of prosecution the applicant must show that there had been inordinate delay, the delay is inexcusable and that the applicant is likely to suffer prejudice by the delay.

19. The memorandum of appeal in this matter was filed on 25th October 2021 and the instant application filed on 31/10/2022. No step had been taken in the matter towards the hearing of the appeal by the time the Applicant filed the instant application. There was therefore a delay of around one year in the matter towards the hearing of the appeal.

20. The reason given for the delay by the Appellants is that they have so far not been supplied with copies of typed proceedings and judgment by the trial court. That they have followed up the matter to obtain the same to no avail. They relied on a letter to the lower court dated 16th February 2022 where they were requesting the court to supply them with the same. The Applicant argues that the delay is inordinate and inexcusable. The Appellants on the other hand argue that the delay is not of their own making.

21. I have considered the reason given for the delay by the Appellants. It is obvious from the Appellants` letter dated 16/2/2022 that they stayed for close to 4 months before applying for copies of proceedings and judgment. After applying for the same in February 2022 they have not shown that they took any other action in ensuring that they were issued with the documents. It is for the appellant in an appeal to take steps to move the case forward. In this matter it has not been demonstrated that the Appellants took adequate steps to obtain copies of proceedings and judgment. It has not been shown that it is the trial court which is entirely to blame for the delay. The reason for the delay has not been satisfactorily explained.

22. The Respondents/Appellants argue that the appeal is not ripe for dismissal for want of prosecution as directions have not been taken in the matter and that an appeal cannot be dismissed for want of prosecution unless directions have been taken.

23. The provisions of Order 42 Rule 35 have received adequate interpretation by the High Court. In Kirinyaga General Machinery –Vs- Hezekiel Mureithi Ireri (2007) eKLR, Kasango J. held as follows on the provision:“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 in Rule 8B. Directions have never been given in this matter. Directions having not been given the orders sought by the Respondent cannot be entertained.”

24. In Elem Investment Ltd v John Mokora Otwoma [2015] eKLR, Aburili J. held as follows:A reading of the above provision shows that it is clear that an appeal can be dismissed for want of prosecution in two instances. Firstly, where there has been failure to list the appeal for hearing three months after directions have been given under Order 42 Rule 13 of the CPR or, secondly, if after one year of service of the Memorandum of Appeal the appeal has not been listed for hearing.In these two scenarios, the procedure is different. In the first scenario, the Respondent is given the option to either list the appeal for hearing or to apply for its dismissal. Under that scenario however, the appeal can only be dismissed if it has been admitted and directions have been given… The record clearly shows that no directions have been given in this matter. In my view the court will not dismiss an appeal for want of prosecution unless directions are issued. In saying so am in agreement with the holdings in many cases of this court including 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 case of 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.”See also Githua J. in Moses Kinyua Ndegwa & another v Alex Musembi Kisilu [2019.

25. In Jesse Gichuru Mwangi & another v Videlis Auma Wanyama & another (2019) eKLR Kamau J.held that:33. The provisions of the law relating to dismissal cannot be read in isolation. The bottom line is that directions must have been given before an appeal can be dismissed for want of prosecution. Indeed, there does not appear to be any penalty where an appellant fails to proceed as per Order 42 Rule 11 and Order 42 Rule 13 of the Civil Procedure Rules, 2010.

26. I am in agreement with these opinions. Directions must be taken before an appeal can be dismissed for want of prosecution except in exceptional circumstances where it is in the interest of justice to do so. In the instant case, directions have not been taken and therefore the appeal is not ripe for dismissal for want of prosecution. It is not in the interests of justice to dismiss the case for want of prosecution as the Appellants have secured the decretal sum through a bank guarantee. In addition, it has not been shown that the Applicant will suffer any prejudice if the matter proceeds to hearing and determination on merit. In my view, justice can still be done in the case despite the delay.

27. In view of the foregoing, the application dated 20th October 2022 dismissed with the following orders:(1)The matter be mentioned before the Deputy Registrar of this court within 14 days of the date hereof.(2)The Deputy Registrar to ensure that copies of proceedings and judgment are issued to the Respondents/Appellants within 14 days of the mention date.(2)The Respondents/Appellants to file and serve the Record of Appeal within 7 days of being supplied with copies of proceedings and judgment.(3)The costs of the application to abide by the outcome of the appeal.(4)Matter to be mentioned before this court for directions on 26/1/2024.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF NOVEMBER 2023. J. N. NJAGIJUDGEIn the presence of:No appearance for Respondent/ApplicantsNo appearance for Appellants/RespondentsCourt Assistant –30 days Right of Appeal