[2018] KEHC 3883 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL APPEAL NO. 48 OF 2017

ZUBHEIR ABDALLA................APPELLANT/APPLICANT

VERSUS

YUSSUF JUMA................................................RESPONDENT

RULING

1. This is a ruling on a Notice of Motion dated 31st May, 2018 by the appellant brought under sections 3, 3A of the Civil Procedure Actand Order 12 Rules 3 and 7 of the Civil Procedure Rules.The Motion seeks that the order made on 31st May, 2018 be set aside.

2. The grounds upon which the Motion was grounded were set out in the body of the Motion and the supporting affidavit of Zubheir Abdallahsworn on 31st May, 2018. These were; that the appeal was set for hearing on 31st May, 2018, but was dismissed for non-attendance on the part of the appellant’s advocate; that the appellant has a meritorious case against the respondent; that if the orders sought are not granted, the appellant will suffer irreparable loss and damage.

3. It was deponed that on the material day, the matter was listed before Majanja J; that after perusing the Cause List for the day, both the appellant and his advocate realized that the matter was last in the Cause List; that the advocate decided to go and attend to another matter before Gikonyo J; that it is then that Mr. Ndubi, Advocate for the respondent called for the file and informed the court that the appellant’s advocate was absent. The court thereupon dismissed the appeal. That the appellant was in court at the time but was unable to follow the proceedings as he has a hearing problem.

4. The appellant further deponed that the non-attendance by his advocate was not deliberate but in advertent. That he has a meritorious case against the respondent who will suffer no prejudice if the appeal is reinstated. He stated that he was willing to prosecute the appeal and should not be left to suffer unjustly by the order of dismissal.

5. The application was opposed by the respondent through the replying affidavits of Josephat Ndubi and Yussuf Juma sworn on 18th June, 2018 respectively. Mr. Ndubi deponed, inter alia, that; on the material day, he perused the court file and found that no appeal had been filed; his office had not been served with any as at the time of swearing the affidavit. That the Judge (Majanja J) called out the matter at 11. 30am and found that no appeal had been filed and thereupon dismissed the same. That he, Mr. Ndubi, came out and found Mr. Abubakar Advocate in the corridor leading to lower court number 3 ‘cracking stories’ with the appellant and court staff.

6. On his part, the respondent deponed that the appeal was dismissed for non-compliance of the orders of 29th May, 2018 and not for non-attendance. That the appellant was not keen in prosecuting the appeal and that his appeal should therefore not be allowed.

7. Mr. Kiogora Mugambi, Advocate filed a Supplementary Affidavit to counter the averments of Mr. Ndubi. He stated that he was the one who had the conduct of the matter on the 31st May, 2018; that he filed the appellant’s record on 30th May, 2018 and had it placed in the court file; that on the date of the hearing, he decided to appear before Gikonyo J as he realized the appeal was the last matter in the cause list. That after he was through before Gikonyo J, Mr. Ndubi found him in court 3 and informed him of the dismissal order. That he sought to serve Mr. Ndubi with the record when the latter found him before Gikonyo J but Mr. Ndubi refused to accept service.

8. I have carefully considered the affidavits on record and the record. Contrary to the averments of the appellant, the appeal was not dismissed for non-attendance, but for non-compliance with the order of the court of 29th May, 2018. I think it would be proper to recap the history of this matter in order to understand the whole saga.

9. By an application dated 5th June, 2017, the appellant applied for the stay of the judgment appealed against. That application was heard on 15th November, 2017. Because of the then pending Election Petitions, the ruling was fixed for delivery on 25th January, 2018. That dated was given in the presence of all Counsels for all the parties. On 25th January, 2018, both the appellant and his advocate gave the court a wide berth. Nevertheless, the ruling was delivered in the appellant’s favour.

10. On the said 25th January, 2018, the court directed that the record of appeal be filed and served within 21 days and the appeal be prosecuted within 120 days. In the ruling granting the appellant stay of execution, the court had directed that the record of appeal be filed and served within 30 days in default the appeal stand dismissed.

11. It would seem that due to the absence of the appellant and his counsel in court on that day, those directions were not complied with. On 29th May, 2018, when the matter came up before Majanja J, the Judge did not seek to enforce the previous orders, he directed that the appeal be filed and served before 30th May, 2018 and the matter be mentioned on 31st May, 2018.

12. The record for 31st May, 2018 reads as follows:-

“Before Hon. Majanja J

C/A Mutua/Kananu

Mr. Ndubi for the respondent

N/A for the appellant

ORDER:- As the record of appeal has not been filed in compliance with my order of 29. 05. 2018, the appeal is dismissed with costs of Ksh.10,000/=

Signed

31. 05. 2018”

13. I have deliberately reproduced the proceedings of that day for good reason. According to the appellant, the appeal was dismissed for non-attendance and that it is Mr. Ndubi who prodded the court to the absence of the appellant’s advocate. Secondly and most important, Mr. Kiogora Advocate has sworn in his Supplementary Affidavit that he had filed the record of appeal on 30th May, 2018 and had the same placed in the court file.

14. A keen reading of the proceedings of that day, would show that although Mr. Ndubi was present, he is not recorded as having addressed the court as alleged by the appellant. Mr. Ndubi swore that he had perused the court file at 8. 30am and found that no record of appeal had been filed. He had not been served with a copy as at that time contrary to the orders of the court made on 29th May, 2018. Further, the Judge himself confirmed that fact before he dismissed the appeal. It cannot therefore lie in the mouth of the appellant and his advocate that the appeal had been filed and placed on record. The Judge would not have recorded what he did if that were the case.

15. The other interesting aspect is what the appellant and his advocate deponed as to what happened on that day. They state that Mr. Kiogora went to attend to a matter before Gikonyo J. He has not disclosed what case, if any, he was attending to before the good judge nor has he produced the Cause List of Gikonyo J for that day to buttress his assertions. The least he was expected to do was; to state the case he had before Gikonyo J, annex a copy of his or the firm’s diary for the day as well as the Cause List for Gikonyo J for that day. This he failed to do and his allegations remain just that, mere allegations that are not supported by any evidence.

16. In paragraph 8 of his supplementary affidavit, Mr. Kiogora deposed:-

“8. That by the time I was through with the matter before JUSTICE GIKONYO, MR NDUBI found me in court 3 and informed me that my clients appeal had been dismissed”.

17. It should be remembered that Mr. Ndubi swore that he met the appellant’s advocate when he was headed to lower court 3. It is therefore an admission, if at all they are to be believed, that the appellant and his advocate chose to proceed to a lower court and leave the appeal before Majanja J unattended. That is by no means a breach of the provisions of the Judicature Act, as to priority of courts.

18. I think I have said enough to show that the appellant’s application has no merit and is for dismissal. Suits are filed in court for prosecution. The appellant has not been keen to prosecute the appeal as the record shows.

19. Accordingly, the application is hereby dismissed with costs to the respondent.

Signed at Meru by me

A. MABEYA

JUDGE

DATED and DELIVERED AT MERU THIS 4TH DAY OF OCTOBER, 2018

F. K. GIKONYO

JUDGE