REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERICHO

CIVIL APPEAL NO.E20B OF 2020

PHILL LIMITED.............................................................................................1^ST APPELLANT

GIDEON MUGO GATWERI..........................................................................2^ND APPELLANT

VERSUS

MBEKE MUISYO AND FRANCIS MUTINDA MUISYO (Suing or behalf of the estate of   

WALTER MUSYOKI MUISYO (DECEASED)...............................................RESPONDENTS

RULING

1. The Appellant was granted leave to appeal in a ruling dated 23/10/2020 on condition that the decretal sum be deposited in an interest earning account held jointly by the counsels for both parties to be opened within 30 days of the date of the ruling.

2. The Appeal was dismissed on 15/7/2021 for non-compliance with the above stated condition and for want of prosecution.

3. The Appellant has filed the Application dated 7/10/2021 dated seeking setting aside of the dismissal order and reinstatement of the appeal.

4. The Application dated 7/10/2021 is supported by the Affidavit of C. K. Kirui dated 7/10/2021 in which it is deponed as follows;

(i) THAT the appellants were granted leave to appeal vide ruling dated 23/10/2020.

(ii) THAT the appellants filed the appeal on 6/11/2020 within the time prescribed by the court, however, the appellants were unable to comply with the second limb of the court’s ruling dated 23/10/2020 on depositing the decretal sum in a joint account owing to difficulties in opening the joint account at KCB Bank.

(iii) THAT the appellants were served with an unfiled copy of the application for dismissal of appeal dated 30/6/2021, however, there was no indication as to when the application was scheduled for hearing and further to this they were not supplied with a hearing notice of the application.

(iv) THAT appellants learnt of the dismissal upon perusal of the court file, whereby they learnt that the appeal was before court on 7/7/2021, 14/7/2021 and 15/7/2021, none of these dates were served upon them and as such the appellants were unrepresented on all the dates.

5. The Respondents filed a Replying Affidavit dated 28/10/2021opposing the Application dated 7/10/2021 in which it is deposed as follows;

(i) THAT the application was a waste of the courts time and an abuse of the court process.

(ii) THAT the applicants had enough time to prosecute their appeal.

(iii) THAT the applicants had not explained the difficulties in opening the bank account and the respondents had responded to requests for documentation in a timely fashion

(iv) THAT the application dated 30/6/2021 to strike out the appeal was served on 9/7/2021 at 11: 43 AM stating that the inter partes hearing was scheduled for 14/7/2021via e-mail.

(v) THAT on 15/7/2021 the court being satisfied that service was effected, dismissed the appeal for want of prosecution and non-compliance with orders of 23/10/2020.

6. The parties filed written submissions which I have duly considered.

7. The Appellants submitted that they were willing to have the appeal prosecuted, they obtained a copy of the decree, applied for a typed copy of proceedings from the lower court and were willing to comply with the court order directing that half the decretal sum be deposited in an interest earning joint account in the name of both counsel, however, the account opening process had not yet been completed owing to delays from the bank.

8. The Appellants cited frustration in the fact that they were not able to track their appeal through the judiciary e-filing system, to have it set for directions owing to confusion occasioned by the court registry on the case filing numbers.

9. The Appellants submitted that on 15/7/2021 their appeal was dismissed for want of prosecution without the Appellants being given a chance to be heard, service for the inter partes hearing was effected through email. The Appellants submitted that the purported service did not meet the threshold for proper service. The Appellants cited order 51 rule 13 (3) of the Civil Procedure Rules that requires that service shall be effected not less than 7 clear days before the hearing date of an application.

10. The Appellants submitted that the intended appeal has a high  chance of success as they were contending findings on both liability and quantum by the lower court.

11. The Appellants submitted that the Respondents had not demonstrated that they would suffer prejudice should the appeal be reinstated rather they as the Appellants stood to suffer loss and prejudice with the current order dismissing the appeal for want of prosecution.

12. The Appellants sought for reinstatement of the appeal and cited the following cases in support of their case John Nahashon Mwangi vs. Kenya Finance Bank Limited (in Liquidation) [2015]; Sang’anyi Tea Factory Co. Ltd. vs. Samwel Bundi Ondieki [2016] KLR; Associated Warehouse Co. Ltd. & Others vs. Trust Bank Ltd HCCC No. 1266 of 1999 (unreported); Pan African Paper Mills Limited vs. Silvester Nyarango Obwocha [2018] eKLR

13. The Respondents on their part submitted that they effected timely service on 9/7/2021 indicating the hearing date of the application as 14/7/2021. That on 14/7/2021 their counsel attended court for hearing of the application in the absence the Appellants, the court directed that the matter be mentioned 15/7/2021 to allow them to file an affidavit of service that had been sent for assessment and not responded to by the registry staff. On 15/7/2021 the court being satisfied that service was effected, dismissed the appeal for want of prosecution and non-compliance with the orders of 23/10/2020.

14. The Respondents submitted that the Appellants had the opportunity to prosecute the appeal and defend the application but chose not to.

15. The Respondents submitted that the Appellants had misled the court on material facts, they cited the case of Ethics and Anti-Corruption Commission vs. Lekyo Tours Limited & Anor 2021 eKLR.

16. The Respondents submitted that the Appellants were guilty of laches after having wasted more than a year in indolence and were undeserving of the courts discretion.

17. The Respondent implored the court to investigate where a greater degree of prejudice fell in its determination on whether or not to reinstate the appeal.

18. The issues for determination are as follows;

(i) Whether the appeal should be reinstated.

(ii) Who pays the costs of the Application

19. The principles to be followed when a court is considering whether or not to reinstatement a suit were outlined in the case of John Nahashon Mwangi vs. Kenya Finance Bank Limited (in Liquidation) [2015] eKLR as follows: “The fundamental principles of justice are enshrined in the entire Constitution and specifically in Article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court. These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need not multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such act are comparable only to the proverbial ‘’Sword of the Damocles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a court of law should consider whether there are reasonable grounds to reinstate such suit-of course after considering the prejudice that the defendant would suffer if the suit was reinstated against the prejudice the Plaintiff will suffer if the suit is not reinstated.”

20. In the case of Philip Chemowolo &Another vs. Augustine Kubende, [1982-88] 1 KAR 103 the court observed as follows that; “Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit ... the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.

21.  I find that the record of appeal has been filed and it has not been shown that the Respondent has suffered prejudice that cannot be compensated by payment of costs.

22. I allow the application and direct that the record of appeal be served within 7 days of this date.

23. The Applicant to pay the Respondent thrown away costs assessed at Kshs.15,000/=.

24. I further direct that the appeal to be canvassed by way of written submissions.

25. The Appellant to file and serve written submissions within 14 days after service of the record of appeal.

26. Thereafter the Respondent to file and serve written submissions in the appeal within 14 days upon being served with the Appellants submissions.

27. Mention on 6/6/2022 for compliance and for a Judgment date.

Delivered, dated and signed at Kericho this 25^th day of March 2022.

A. N. ONGERI

JUDGE