[2022] KEHC 17085 (KLR)

Wells Construction Company Limited v Nguti (Civil Appeal 113 of 2017) [2022] KEHC 17085 (KLR) (30 June 2022) (Ruling)

Neutral citation: [2022] KEHC 17085 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 113 of 2017

MN Mwangi, J

June 30, 2022

Between

Wells Construction Company Limited

Appellant

and

William Mwenda Nguti

Respondent

Ruling

1. The respondent’s Notice of Motion dated February 5, 2021 has been brought under the provisions of Section 78(2) of the Civil Procedure Act and Order 42 Rule 35(2) of the Civil Procedure Rules. The applicant seeks the following orders–i.That the appeal herein be dismissed for want of prosecution; andii.That costs of and incidental to the appeal be awarded to the respondent.

2. The application is premised on the grounds on the face of it and the affidavit sworn on February 5, 2021 by Godfrey Mutubia, learned Counsel for the respondent. He averred that the respondent filed a suit against the appellant for recovery of damages for the tort of negligence and statutory duty of care. That the primary suit was heard and judgment entered in favour of the respondent against the appellant. He stated that the appellant being dissatisfied by the judgment by Hon Mutunga, SRM, filed a Notice of Motion dated June 7, 2017 seeking orders for stay of execution of the said judgment pending the hearing and determination of the appeal. Mr Mutubia averred that the Court granted orders for stay of execution on June 29, 2017 and directed the appellant to file and serve a Record of Appeal within 60 days from the date of the said order.

3. The respondent’s deponent averred that three years have gone by but the appellant has not taken any step either to file and/or serve the respondent with a Record of Appeal, despite being reminded several times. He deposed that as such, the appeal herein stands dismissed by default as it is clear that the appellant is not interested in prosecuting the instant appeal. He also deposed that the appellant was obstructing the cause of justice by delaying the prompt and fair conclusion of this matter.

4. The application was opposed by the appellant through a replying affidavit sworn on September 21, 2021 and the grounds of opposition dated July 23, 2021. In the said replying affidavit, Mr G N Gakuo, the learned Counsel for the appellant averred that after filling the Memorandum of Appeal and the Notice of Motion, he has on numerous occasions requested for certified copies of the judgment and proceedings of the Trial Court to enable him file a Record of Appeal to no avail and that the said Court has not responded to the appellant on the issue to date, and no reason has been advanced by the Executive Officer for the delay.

5. Mr Gakuo deposed that the Covid-19 Pandemic caused scaling down of Court operations in the year 2020 and as a result, the appellant was barred from effectively pursuing the appeal. He further deposed that it was evident that the delay in lodging a Record of Appeal within the required time had been occasioned by factors beyond the appellant’s control, since the appellant has always been desirous of prosecuting the appeal.

6. He stated that the appellant had shown sufficient cause to justify the delay in prosecuting the appeal, and if the orders sought are granted, the appellant shall suffer great injustice and prejudice as it will be condemned unheard.

7. The application herein was canvassed by way of written submissions. The respondent/applicant’s submissions were filed on September 15, 2021 by the law firm of Sherman Nyongesa & Mutubia Advocates, while the appellant/respondent’s submissions were filed on October 1, 2021 by the law firm of Muturi, Gakuo & Kibara Advocates.

8. Mr Mutubia submitted that on June 29, 2017, parties recorded a consent allowing the application for stay of execution on condition that the appellant was to file and serve the Record of Appeal within 60 days from the date the order was issued. He stated that more than three years had gone by since the order was issued and the appellant has never taken any step to comply with the said consent. He added that the appellant had not made any application for enlargement of time or review of the said orders, which remain binding to the parties.

9. He cited the case of B v Attorney General [2004] 1 KLR 431, where the Court stated that orders are not made in vain, otherwise the Court would be exposed to ridicule.

10. Mr Mutubia submitted that the conduct by the appellant demonstrates that is not acting with bona fides and that it is only interested in obstructing the cause of justice by delaying the respondent from enjoyment of his fruits of judgment.

11. Mr Gakuo for the appellant relied on the case of John Harun Mwau v Standard Limited & 2 others [2017] eKLR, where the Court of Appeal held that the test to bear in mind is if any action has been taken to prosecute the matter, whether the delay is prolonged and inexcusable and if it is, if justice can be done despite such delay. He stated that in the said case it was held that a Court should also consider the prejudice that may be occasioned

12. He submitted that the appellant has physically attended the Court Registry on numerous occasions in order to obtain the typed proceedings and pleadings but with no success. Further, that the appellant has been unable to fix the matter for mention for directions in the absence of certified copies of proceedings and the judgement and to make the Record of Appeal.

13. Mr Gakuo also submitted that the respondent has not demonstrated in any way whatsoever the prejudice that will be occasioned to him should the appellant pursue the appeal to its logical conclusion. He stated that dismissal of the appeal would be a draconian measure that would bar the appellant’s appeal from being determined on merits.

14. He relied on the provisions of Order 50 Rule 6 of the Civil Procedure Rules, which provides that Courts have power to enlarge the time required for the performance of any acts stipulated in the Rules notwithstanding the fact that such time has expired. He indicated that it follows that the issue of whether to extend time or not is a matter of judicial discretion.

15. Order 42 Rule 35(1) & (2) of the Civil Procedure Rules provides as follows-“1. Unless within three months after the giving of directions under rule 13 the appeal shall be set down for hearing, the Respondent shall be at liberty to either set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.2. If, within one year after 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.”

16. Order 42 Rule (35)(2) of the Civil Procedure Rules in my view is meant to take care of dormant appeals which are simply abandoned after they are filed such that no interest is demonstrated by the appellants in taking any single step towards progressing it for admission, directions or hearing for a minimum period of one year.

17. The principles to be considered in an application for dismissal of an appeal were restated by the Court of Appeal in Peter Kipkurui Chemoiwo vs Richard Chepsergon [2021] eKLR and include whether the delay is prolonged and inexcusable, and if it is, whether the delay could be excused and justice can be done despite the delay. See also Ivita v Kyumba [1984] KLR 441. It is clear from the instant case that the delay herein is indeed prolonged. The appellant’s Counsel blamed the Trial Court for not furnishing him with Court proceedings and judgment to enable him file the Record of Appeal. He also blamed the Executive Officer, Mombasa Law Courts for failing to respond to his correspondence. He also cast some blame on the Covid-19 Pandemic which caused the scaling down of Court operations in the year 2020.

18. In the annexures attached to the appellant’s Counsel’s affidavit, numerous letters addressed to the Deputy Registrar, High Court Mombasa and the Executive Officer, Chief Magistrate’s Court Civil Registry, Mombasa were exhibited, in which he requested for certified typed proceedings and judgment to enable him to prepare the Record of Appeal. The said letters are dated June 13, 2017, July 28, 2017, August 1, 2017, August 21, 2017, October 16, 2017, November 3, 2017, June 4, 2018, August 13, November 13, 2018, March 22, 2020 and October 19, 2020.

19. From the said letters, it is evident that the last step taken by the appellant was through the letter dated October 19, 2020. It is noted that the present application was filed on February 5, 2021, which means that there was a hiatus of three months when the appellant’s Counsel did not make a follow up of the certified typed proceedings and judgment. Needless to say that it must have been disheartening to Mr Gakuo not to receive any feedback from the Court after writing so many letters to the Executive Officer and Deputy Registrar at Mombasa Law Courts.

20. It is evident that the said Counsel made concerted efforts to have the appeal heard but he had been frustrated by lack of certified typed proceedings and judgment that would be have enabled him to compile a Record of Appeal. As such, the appellant cannot be blamed for not having filed the Record of Appeal within sixty days as ordered by the Court. In any event, the consent order never stated that the Appeal would lapse at the expiry of the sixty days.

21. In the case of Pinpoint Solutions Limited and Another vs Lucy Waithegeni Wanderi (as the Legal Administrator of the Estate of James Nyanga Muchangi) [2020] eKLR, Judge Jackie Kamau when deciding on an application similar to the present one made the following observation -“20. 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. 21. This court took the view that an appeal cannot be dismissed before directions had been given. As there was no indication that directions had been given herein, the Appeal herein could not be dismissed under Order 42 Rule 35(1) of the Civil Procedure Rules. In any event, there was also no evidence that the Registrar had issued a notice under Order 42 Rule 12 of the Civil Procedure Rules. There was also no indication that the lower court file and proceedings had been forwarded to the High Court for the Registrar to proceed as aforesaid…”

22. It is not in dispute that the Executive Officer has not supplied the appellant’s Counsel with typed proceedings and judgment of the lower Court case as requested. In the circumstances, the appellant should not be blamed for the delay in prosecuting its appeal. As such, I find the explanation given by the appellant’s Counsel plausible. The respondent did not demonstrate what prejudice he would suffer or he has suffered as a result of the delay in having the appeal prosecuted.

23. In the end, I find no merit in the application dated February 5, 2021. The same is hereby dismissed. I give the following directions-

aThe Deputy Registrar shall-iForward to this Court, the original Trial Court’s record together with typed proceedings;iiSupply the appellant’s Counsel with certified proceedings within 30 days from the receipt of this ruling;bUpon receipt of typed certified proceedings and judgment, the appellant’s Counsel shall file and serve the Record of Appeal within thirty (30) days thereof; andcIn the event of default by the appellant, the appeal herein will stand automatically dismissedIt is hereby so ordered.DATED, SIGNED and DELIVERED at MOMBASA on this 30th day of June, 2022. Ruling delivered through Microsoft Teams Online Platform.NJOKI MWANGIJUDGEIn the presence of:Ms Asewe holding brief for Mr Mutubia for the respondentNo appearance for the appellantMr Oliver Musundi – Court Assistant.