1.The 1st respondent/applicant in this instance has brought the Notice of Motion dated 20th April 2022 which is supported by the grounds set out in its body and the facts deponed in the supporting affidavit. The applicant sought for an order to the effect that the appellant’s/respondent’s appeal be dismissed for or alternatively the appellant be compelled to prosecute this appeal within a period of Ninety (90) days.
2.In opposing the said Motion, the respondent filed the replying affidavit of advocate Mamo B Mamo, to which Rumba Kinuthia rejoined with her supplementary affidavit sworn on 28th June 2022.
3.The 2nd respondent filed also opposed the application by filling grounds of opposition dated 30th May 2022.
4.When the Motion came up for interparties hearing before the court on 12th July, 2022 the parties were directed to file and exchange written submissions. I have considered the grounds set out on the face of the motion dated 20th April 2022 and the facts deponed in the rival affidavits.
5.The sole issue for determination before this court is whether the appeal filed by the Appellants is ripe for dismissal.
6.In his supporting affidavit, Rumba Kinuthia stated that the appeal before this court ought to have been filed by the 11th of February 2021 but was filed on 12th February 2021 contrary to the orders of the court.
7.The above averments were echoed in their submissions thatit is also not in dispute that the petitioner failed to ask the court for permission before filing the appeal after the deadline had passed. Furthermore, no explanation for the alleged delay was provided in their response. Additionally, despite the court's instruction, the appellant did not pay the full decree amount before submitting the appeal.
8.The applicant further submitted that the court does not provide orders in vain. Court orders are intended to be scrupulously adhered to in order to maintain fairness in the conduct of the court and order in the court's proceedings. On this the applicant relied on the case of B vs. Attorney General (2004) eKLR where the court stated thus; “The Court does not, and ought not to be seen to, make Orders in Vain; otherwise the Court would be exposed to ridicule, and no agency of the constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people”
9.The applicant made several applications for this matter to be set down for hearing but the matter could not proceed as the lower court file had not been availed to the High court.
10.The applicant was informed that the file had not been dispatched to the High court, as no request had been made by the appellant and that the appellant has never requested for certified copies of the proceedings, decree or judgment from the trial court to prepare the record of appeal.
11.In response, the 1st respondent submitted that this Honorable court lacks jurisdiction because the same parties are involved in an existing application dated 23rd April 2021, that is currently pending hearing and determination before this very Court, and because the applicant/prayers are similar to those in the Application dated 20 April 2022. Therefore, the application dated April 20, 2022 below is considerably Sub-Judice the application dated April 23, 2021 in the High Court of Kenya.
12.The 1st respondent relied on the Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties  eKLR) the Supreme Court of Kenya stated as follows:
13.The 2nd respondent in its ground of opposition stated that the appeal is merited and has a high chance of success in that the trial court erred in law and in fact in disregarding the evidence of the 1st respondent witness and the 2nd respondent.
14.The 2nd respondent further stated that the issues raised in the instant application had already been determined in a previous case which involved same parties and the same subject matter resulting to the same being res judicata and thus stand dismissed on that point.
15.The 2nd respondent contends that the applicant is alleging delay on the part of the appellant in availing the trial file from the lower court to the high court, as such the appellant can only do much as it is not within his mandate to push for the same and that the Executive officer and the Deputy Registar are tasked with the job which they should not serve as a ground to dismiss the appeal.
16.Order 42, Rule 35 of the Civil Procedure Rules, 2010 provides for the circumstances and manner of dismissal of an appeal as follows:
17.The appellant/1st respondent in this case obediently followed the orders of this Honorable Court and deposited the stipulated sum. Following that, she wrote to this Honorable Court to request clarification and more instructions in accordance with Order 42 Rule 11, but unhappily she hasn't received a response.
18.It is apparent that directions are yet to be given in respect to the appeal and consequently, the appeal is yet to be set down for hearing. It therefore follows that the appeal cannot be deemed to be ripe for dismissal under the provisions of Order 42, Rule 35 (1).
19.There is also nothing to indicate that the Deputy Registrar has since listed the appeal before a judge for dismissal pursuant to the provisions of Order 42, Rule 35(2) (supra).
20.The 1st respondent/applicant approached this Honorable Court with dirty hands, which is against the maxim in equity that states that he who comes to equity must do so with clean hands. The 1st respondent/application applicant's dated 20th April, 2022 is Sub-Judice the application dated 23rd April 2021 before this very Court. I am convinced to consider it appropriate to strike out the application on grounds that it is an obvious misuse of the Court process and that the application dated April 20, 2022 and the entire matter herein are vexatious and malicious.
21.In the premises, I find the Motion to be without merit. However, the appellant should prosecute the appeal within 90 days from today’s date failure to which the appeal shall automatically stand dismissed. Costs to abide the outcome of the appeal.