1.What is before me is the Notice of Motion dated 18th October 2021, brought under Section 1A,1B and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya, Order 42 Rule 35 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law.
2.The application seeks the following orders:1.Spent2.Spent3.That this Honourable Court be pleased to set aside the orders issued on 21st May 2021 dismissing the appeal for want of prosecution together with all consequential orders;4.That the appeal herein be reinstated and be admitted for hearing and determination on merit and directions be issued in that respect,5.Thatcosts of this Application be provided for.
3.The application was provoked by the order of this court made on 21st May 2021 dismissing the appeal for want of prosecution. On that day the matter was listed in the dismissals list. There was no appearance by either the appellant nor respondent.
4.In the Supporting Affidavit sworn by Kisilah Daniel Gor Advocate on 18th October 2021 he set out the history of the matter. That the Subordinate Court’s Judgment was delivered on the 15th August 2017 and the Memorandum of Appeal filed on the 7th September 2017. The Record of Appeal was filed and served on the 3rd December 2019. Thereafter he wrote letters to the Deputy Registrar seeking confirmation as to whether or not the appeal had been admitted to enable them fix the same for directions. That these letters were never responded to only for them to later find out that the appeal had been dismissed for want of prosecution.
5.That on the 13th September 2017 the appellant had sought and was granted orders for stay of execution by the subordinate court pending the hearing and determination of the appeal on condition that the appellant deposit Kshs. 220,000/= in a joint interest earning account of which he complied.
6.That the Covid Pandemic made it difficult to obtain certain services from the court. After waiting for responses from the Deputy Registrar in vain and when they were able to peruse the court file they established unfortunately that this appeal was dismissed for want of prosecution; that the notice that was intended to be served upon the parties therein seemed not to have been served upon them, and it was evident that no notice to show cause had been served upon them.
7.That the occasion for dismissal of the appeal for want of prosecution had not arisen and its dismissal was clearly premature and most certainly inadvertent
8.The application is opposed through the affidavit of the respondent Julius Oyogo Nyamosi sworn on 3rd December 2021.
9.He took the position that the appellant upon filing the appeal had not taken any steps to prosecute the appeal and the court had proceeded rightfully, to dismiss it suo motu. That the only thing the applicant had done was to write the letter dated 10th February 2020 as the rest of the correspondences by the applicant are from August 2021 to October 2021 or thereabout long after this appeal was dismissed.
10.That the allegation that the pandemic made court services inaccessible is misleading as court services were rendered virtually.
11.The parties took directions to canvass the appeal by way of written submissions.
Applicant’s Written Submissions
12.The applicants submitted on two issues1.Whether or not the instant appeal was ripe for dismissal for want of prosecution.
13.The Applicant reiterated that their efforts to inquire about the status of the appeal and to have the matter placed before the trial court for perusal and formal admission from the Deputy Registrar were rendered futile as their correspondences never elicited any response.
15.The appellant submitted that the issuance of a notice is paramount before an appeal is considered for dismissal.2.Whether or not the appeal ought to be reinstated.
16.The Appellant citing Articles 48 and 50(1) of the Constitution submitted that he will suffer immensely if the Appeal is not reinstated.
17.They urged this court to reinstate the appeal.
18.The respondents filed their Submissions on 14th January 2022.
19.The respondents submitted on the following issues: -A. Whether the delay to prosecute the appeal was prolonged and inexcusable.
20.The respondent submitted that since the appeal was filed on 3rd December 2019, the Appellant took no steps to fix this matter for directions save for a correspondence dated 10th February 2020.
21.He argued that courts have inherent discretion to dismiss an appeal for want of prosecution under section 3A of the Civil Procedure Act and to make such orders as may be necessary for the ends of justice or to prevent abuse of the court process.
23.The respondent submitted that the Appellant slept on his right of appeal and woken by the dismissal of its appeal. That equity aids the vigilant and not the indolent and therefore the delay in prosecuting this appeal is inexcusable. He cited the case of Simon Wachira Nyaga vs Patrick Wamwirwa, Kerugoya Civil Appeal No.211 of 2013 eKLR where Justice L.W. Gitari referred to the Court of Appeal decision in Cecilia Wanja Waweru vs Jackson Wainaina Muiruri & Another , eKLR where the Court of Appeal held:-
24.The respondent argued that service of notice under order 17 Rule 2(1) of the Civil Procedure Rules, 2010 is not mandatory and that the court may give notice of dismissal through its official website or through the cause list.
25.He stated that this Application lacks merit and urged the court to dismiss it with costs to him.
Issues for Determination
26.I have carefully considered the rival affidavits, submissions and authorities. The only issue for determination is whether or not this court should set aside the order issued on 21st May 2021 and reinstate the Appeal.
27.First, the respondent cited Order 17 rule (2) (1) of the Civil Procedure Rules, on notice to show cause with respect to suits. With respect the matter before me is the appellant’s appeal and the operative rules are found in order 42. This is because the Deputy Registrar had made the notice for dismissal under those provisions.
28.Order 42, Rule 35(2) states;
29.The Appeal was filed on the 7th September 2017 and it is yet to be admitted. The applicant inquired on the status of the appeal via the attached correspondences to court dated 10th February 2020 and 25th January 2021. These letters were not responded to prior to dismissal of their appeal on 21st May 2021.
30.I have perused the record and note that there was indeed a Notice to Show Cause by the Deputy Registrar dated 24th December 2019 wherein the matter was to be mentioned on the 4th May 2020. There is no evidence of service or reissuance of a fresh notice. Evidently there was an error on the part of the court in listing the matter for dismissal without issuing a fresh notice to the parties.
31.There is also evidence of correspondence by the appellant’s counsel to the court seeking directions as to whether the appeal had been admitted. There is no evidence of any response from the court.
32.I do find therefore that the application is merited, the orders of 21st May 2021 are set aside, the Appeal is reinstated.
33.The Deputy Registrar to avail the subordinate court ‘s file to enable the appellant to fix a mention date for directions.
34.The costs of this application should abide the outcome of the Appeal.
Dated, Signed and Delivered virtually this 19th May 2022.Mumbua T MathekaJudgeCA EdnaSheth & Wathigo Advocates for the defendantsM/S Mboga G.G. & Co. Advocates for the respondent