1.Before this court is the applicant’s notice of motion application dated February 10, 2022. The applicant seeks for orders: -1.That orders dated April 2, 2019 be reviewed or be set aside.2.That the funds deposited and currently being held at Access Bank joint account No 603xxxxx formerly Trans National Bank under Mose, Mose & Milimo Advocates together with interest thereto be released to the applicant.3.Costs of this application be borne by the appellant.
2.The application is premised on the grounds set out therein and is supported by the affidavit sworn by Patrick K Kibii on February 10, 2022. He deposed that the applicant sued the appellant, the 2nd respondent and the 3rd respondent in Eldoret CMCC No 435 of 2013 seeking compensation for loss of dependency. Judgment was entered in favour of the applicant for Kshs 2,304,000/= plus costs. Vide the order of the court dated April 2, 2019, the appellant was ordered to deposit the sum of Kshs 601,000/= in the joint names of the advocates on record as a condition for stay of execution pending appeal. The appellant duly complied with said order and deposited the aforesaid amount in the joint account in the name of the parties’ advocates on record. The applicant contends that the appellant has since then not taken any steps to file the intended appeal.
3.According to the applicant he has been denied the enjoyment of fruits of his judgment and continues to suffer prejudice.
4.In opposition, the appellant/respondent filed a replying affidavit sworn by Kipchirchir Kurgat Elkana on June 7, 2022 in which he deposed that on April 2, 2019 the parties herein entered into a consent whereby the appellant was granted leave to lodge an appeal out of time and stay of execution of the judgment in Eldoret CMCC No 435 of 2013 pending the hearing and determination of the intended appeal on condition that the appellant deposits half of the decretal sum in a joint interest earning account in the name of the parties advocates on record as security.
5.The respondent subsequently filed its memorandum of appeal dated April 30, 2019 in Eldoret HCCA No 54 of 2019 on May 8, 2019 and served the applicant on May 10, 2019. The respondent argued that the appeal is yet to be admitted because pre-trial directions are yet to be complied with.
6.The respondent deposed that it has sought and paid for typed proceedings in the matter and has also notified the applicant of every step that has been taken towards the prosecution of the pending appeal. The respondent denied the assertion that no action has been taken towards the prosecution of the appeal.
7.The respondent contends that the applicant having consented to the orders that he now seeks to set aside, he has never applied for that consent to be withdrawn.
8.The respondent further contends that on July 16, 2017 the court addressed the issues in this instant application and the matter was marked as settled. the respondent maintains that the issues herein can be addressed in the substantive appeal. The respondent contends that the security furnished in this matter, which the applicant now seeks to be released to him has no relationship with the cause but was deposited as result of the appeal.
9.The respondent’s case is that this application is an abuse of the judicial process and judicial time and it therefore brought in bad faith and ought to be dismissed.
10.The court directed parties to file their respective submissions. The applicant filed his submissions dated July 6, 2022 on July 12, 2022 whereas the respondent filed it submissions dated July 16, 2022 on July 18, 2022.
11.I have carefully considered the present application, the affidavits in support and opposition of the said application, as well as the respective submissions of the parties. From the orders sought in the application, it is evident that the Applicant seeks to have the stay orders vacated and the decretal sum deposited in the joint interest earning account be released to him.
12.However, before delving into the merits of this application, I will first address the appellant’s contention that the court became functus officio on July 16, 2017 when it directed that the file herein is marked as closed and therefore has no jurisdiction to entertain this instant application. On this issue I am guided by the case of Raila Odinga & 2 Others vs Independent Electoral & Boundaries Commission & 3 Others (supra) where the Supreme Court of Kenya rendered itself thus:
13.The orders of stay in the instant case were granted in light of the consent order dated March 13, 2019 in which parties agreed to have the trial court’s judgment stayed pending the filing of the intended appeal out of time. The applicant in the present case seeks to have the consent order dated March 13, 2019 and adopted an order of the court on April 2, 2019 reviewed and or set aside for want of prosecution.
14.Under order 45 of the Civil Procedure Rules, the court can review any order or decree provided no appeal has been preferred. This includes an order for the closure of a court file. I disagree with the appellant’s advocate that a party seeking a review of an order in a file which has been marked by the court as closed, must first seek leave of court for the file to be re-opened. Applying the above cited principles to the circumstances of this case, I find that this court is not functus officio and has the jurisdiction to entertain an application seeking to review and or set aside the orders of April 2, 2019.
15.The applicable law as regards dismissal of an appeal for want of prosecution is order 42 rule 35 of the Civil Procedure Rules which provides as follows:
16.The processes of giving directions and service of memorandum of an appeal are provided for in order 42 rules 11, 12, and 13 of the same rules, wherein it is provided as follows:
17.From the foregoing, it is evident that order 42 rule 35 of the Civil Procedure Rules, 2010 envisages two (2) scenarios for the dismissal of an appeal for want of prosecution as follows; when an Appellant fails to cause the matter to be listed for directions under section 79B of the Civil Procedure Act as is envisaged in order 42 rule 11 of the Civil Procedure Rules and; if after service of memorandum of appeal the appeal would not have been set down for hearing, the registrar shall on notice to the parties list the appeal before the judge for dismissal.
18.The applicant wants the appeal to be dismissed for want of prosecution, because it has been three (3) years since the appellant filed the memorandum of appeal but no steps have been taken towards prosecuting the said appeal. He argues that he is being denied the right to enjoy the fruits of the judgment.
19.In assessing any prejudice caused to the applicant by the delay, the court should also assess the likely prejudice the dismissal of the appeal will cause the appellant/respondent.
20.On whether there has been inordinate delay on the part of the appellant/respondent in prosecuting the case, the record speaks for itself. Is the delay justifiable, considering the fact that this appeal is for 2019? From the evidence on record it is clear that the appellant/respondent has continued to follow up on the typed proceedings and judgment shows his interest in the matter.
21.The court in Ivita vs Kyumba (1984) KLR 441 stated thus: -
22.The appellant/respondent was granted the stay of execution on condition that it deposits half the decretal sum being Kshs 601,000/= in the names of the parties advocates on record which orders were complied with. The applicant wants the said orders vacated and the funds deposited in the joint interest earning account released to him together with the interests thereon. In my opinion the depositing in an interest earning account half of the decretal sum by the Appellant is a commitment that he will pay the full amount if the appeal succeeds. Further, it is a form of security so as to make the 1st respondent/applicant feel safe that he will not be prejudiced in any way.
23.The willingness by the appellant to pay half the decretal sum deposited in a joint interest account for a conditional order of stay of execution protects both parties as one has partial fruits of his judgment and the other has a right to a fair trial by way of appeal under article 50 of the Constitution. In light of the foregoing, I hereby direct the appellant to see to it that the record of appeal is filed within the next (45) days and that the appeal is set down for directions.
24.This finding notwithstanding, it is not disputed that directions have not been given in this appeal, and the appeal cannot therefore be dismissed pursuant to order 42 rule 35(1) of the Civil Procedure Rules. The appeal has also not been admitted to hearing, and since order 42 rule 12 of the Civil Procedure Rules provide that a memorandum of appeal shall be served after it has been admitted to hearing, this appeal is also therefore not amenable to dismissal under order 42 rule 35 (2).
25.In the premises, I find that the application dated February 10, 2022 lacks merit and is hereby dismissed with costs.