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Muiruri & another v Munyithya (Civil Appeal E119 of 2021) [2022] KEHC 13062 (KLR) (Civ) (23 September 2022) (Ruling)
Neutral citation:
[2022] KEHC 13062 (KLR)
Republic of Kenya
Civil Appeal E119 of 2021
JK Sergon, J
September 23, 2022
Between
James Muthaka Muiruri
1st Appellant
Andrew Ndegwa
2nd Appellant
and
Catherine Muthini Munyithya
Respondent
Ruling
1.Catherine Muthini Munyithya, the respondent/applicant herein, took out the notice of motion dated April 8, 2022 and sought for an order to the effect that the appellants’/ respondents’ appeal be dismissed for want of prosecution with costs.
2.The motion is supported by the grounds presented on its face and the facts stated in the affidavit of the applicant’s advocate, Musili Mbiti.
3.When the motion came up for interparties hearing before the court on July 12, 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 April 8, 2022 and the facts deponed in the supporting affidavit.
4.At the time of writing this ruling, the respondent had not filed their response nor filed their submissions.
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, Musili Mbiti stated that the respondent has refused, neglected and /or otherwise failed to take the steps to prosecute the appeal for a period of over one year and that the delay was intentional, inordinate and inexcusable as they have not shown any reason for the delay.
7.The above averments were echoed in the submissions of the applicant, save to add that there has been delay on the respondent’s part and find that the appeal is not made in good faith, this court has inherent powers to still dismiss it in the interest of justice. To support his argument, the applicant cited the case of Protein & Fruits Processors Limited & Another v Diamond Trust Bank Kenya Limited (2015) eKLR, Civil Appeal 9 of 2007 where he held that;
8.Order 42, rule 35 of the Civil Procedure Rules, 2010 provides for the circumstances and manner of dismissal of an appeal as follows:
9.The memorandum of appeal herein, has been pending since March 25, 2021 when it was filed. The appellants have not progressed the matter since then. The appellants have not complied with the relevant provisions of the law as cited herein. In particular, the appeal has not been listed for directions as required under order 42 rule 13 (1) of the Civil Procedure Rules, 2010. In that case, the provisions of order 42 rule 35 (2) Civil Procedure Rules, 2010 comes into play.
10.Despite the fact that the application is unopposed, the provisions of order 42 rule 13 are clear that the applicant cannot move the court to dismiss the appeal for want of prosecution before directions have been given by the court. The second scenario under the rule is available to the applicant. The procedure he ought to have followed is to write to the registrar to request him to list the appeal before a judge in chambers for dismissal as was held in the case of Adnan Karama Petroleum Limited (T/A Ak Filling Station) Vs National Environment Management Authority [2007] eKLR.
11.The Applicant has failed to comply with the provisions of order 42 rule 35(2) and the application must therefore fail.
12.In the premises, I find the motion to be premature and the same is ordered struck out with each party bearing their own costs.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 23RD DAY OF SEPTEMBER, 2022.………………………JK SERGONJUDGEIn the presence of:………………………………. for the 1st Appellant………………………………. for the 2nd Appellant……………………………… for the Respondent
