REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL DIVISION

HCCA NO.E064 OF 2022

GEORGE NDUNGU GITU T/A  AQUA GARDENS…..........APPELLANT

-VERSUS-

1.  CLAIRE WAMBUI KINUTHIA                                                                      

2. VICTOR WAHOME KINUTHIA                                                                    

3. DENNIS NGARI KINUTHIA.............................................RESPONDENTS

R U L I N G

1.  On the 15^th February, 2022, simultaneous with the Memorandum of Appeal instituting the instant appeal, the Appellant filed a Notice of Motion application dated the 14^th February, 2022, substantially seeking orders of stay of execution against the orders/ruling of the Business Premises Rent Tribunal BPRT Case No.63 of 2022 pending the determination of the appeal.

2.  The grounds adduced in support of the application and as reiterated in the affidavit sworn in support thereof are that, the tribunal erroneously dismissed an application dated 8^th November, 2021 on grounds of failure of service and want of prosecution. The Appellant thinks the dismissal was unjust and pleads that it ought to be set aside lest he be evicted from the lease premises.

3.  In opposition to both the application and the entire appeal, the Respondents jointly filed a Notice of Preliminary Objection on the ground that this court lacks the jurisdiction to handle the matter by virtue of Section 15 of Cap 301 of the Laws of Kenya.

4.  However, neither the appeal nor the application dated 14^th February, 2022 have ever been prosecuted since they were presented to court. The record shows that the application was first placed before court on 15^th February, 2022 under Certificate of Urgency and directions were given for inter-parties hearing on 10^th March, 2022. On 10^th March, 2022, the Respondents showed up through their advocate while the Appellant and/or his advocate were absent and no explanation whatsoever was given. The Matter was then adjourned to 16^th March, 2022 and on that date none of the parties showed up in court and the matter was placed aside to be mention on 17^th March, 2022. When the court reconvened on 17^th March, 2022, the Appellant and his advocates again failed to show up in court and the Respondents’ counsel applied for the matter to be dismissed for want of prosecution and lack of jurisdiction.

5.  I have also read through the pleadings and annexures in the application and it is clear that the germane of this appeal is to reinstate an application dated 17^th January, 2020 which was dismissed for among other reasons, the want of prosecution. Now, since the appeal was presented to court, the Appellant has never showed up in court and most of the instances demonstrate a pattern of failure or the lack of readiness by the Appellant/Applicant to prosecute his case. This behavior portrayed by the Plaintiff is commensurate to that of a sluggish and lethargic litigant and it has been persistent since the filing of the reference before the tribunal.  

6.  An appeal cannot be left to remain hanging on the necks of the Respondents without any effort being undertaken to prosecute it. There is no doubt that the Respondents herein continue to be prejudiced by the magnitude of delay that has been exhibited by the Appellant herein.   Article 159(2)(b) of the Constitution of Kenya 2010 enjoins the courts to administer justice without delay while the objective of the oxygen rule under Sections 1A and 1B of the Civil Procedure Act is to ensure the just, expeditious, proportionate and affordable disposal of cases.

7.  The Appellant should have at least shown up once after filing the Certificate of Urgency on the 15^th March, 2022.  But since then, he seems unbothered by the events of the Appeal or better still, the question is, he filed the appeal for the sake of filing it? Therefore, my view is that the Appellant is guilty of laches as he has been less than diligent in having the appeal and the application prosecuted.

8.  Accordingly, I find no good reason why this appeal should continue pending in this court and the same is hereby dismissed with costs.

Orders accordingly.

RULING DELIVERED VIRTUALLY, SIGNED AND DATED IN NAIROBI THIS 22ND DAY OF MARCH, 2022.

D. O. CHEPKWONY

JUDGE

In the presence of:

No appearance for Applicant

Mr. Ndungo Gachiri counsel for Respondent

Court Assistant - Adika