The Application Dated 21st August 2019
5.There are several orders sought as stated at paragraph 1 above.In my view, prayer 5 for dismissal of the appeal for want of prosecution is the main, as determination thereof will determine prayer number 6 and 7.
6.The Applicant’s submissions as contained in the supporting affidavit which the Applicant adopted are that no steps had been taken by the Appellant for a period of three years since filing of the appeal, nor had it set down the appeal for directions as required by Order 42 Rule 35(1) of the Civil Procedure Rules.
7.In response, the Appellants urged that the application was pre-mature, hopelessly defective and lacks legal foundation and therefore sought for its dismissal for the main reasons that despite requesting for typed proceedings form 2016, no proceedings have been provided. It is a further argument that the Respondent too has an option to set the appeal down for hearing citing provisions of Order 42 Rule 13 & 35 Civil Procedure Rules.
8.In his oral submissions, the Respondent’s advocate Mr Macharia told the court that they had the certified copies of proceedings, certified on the 10th of May 2021 – way after the application was filed, and sought to have the application compromised to enable them file the Record of Appeal stating that the Appellant has a right to be heard on the appeal.
Analysis and Determination
9.There is no dispute that the decretal sum of Kshs 300,000/- was deposited in court as security pending hearing and determination of the appeal filed on the 24th of August 2016. That in itself locked the Applicant out of enjoyment and use of his judgment fruits, now for about seven years. The Applicant cannot be blamed for the delay caused by the court Registry in its failure to provide the typed proceedings as captured in court’s ruling dated 18th May 2018.
10.However, the court notes, and by own admission by the Appellant, that certified proceedings were supplied to the Appellant about 10th May 2021 after the application.The question then that begs an answer is why up to the date of hearing the Application on the 21st June 2022, the Applicant had found it not fit to file the record of Appeal to progress its hearing – a period of over one year without any action at all. Has this delay or inaction been sufficiently explained by the Appellant?
11.The court in Nzoia Sugar Company Limited Vs West Kenya Sugar Company (2020) e KLR, the Hon. Justice Mohamed (as he then was) held that:
12.In my view, up to the date the typed proceedings were supplied to the Appellant about 10th May 2021, could be explained. But what about the one year since? The Appellant in my view fell short of any plausible reasons. No step has been taken while the Respondent continues to suffer prejudice for the Appellant’s inaction for at least one year.
13.Order 42 Rule 35 (i) of the Civil Procedure Rules provides:
14.The above provision offers the Respondent an option to set down the appeal for directions if the Appellant does not. It is the Appellant who clearly has the onus and duty to set its appeal for directions. The Respondent is at liberty meaning it is not mandatory for the Respondent to take any action. Indeed, the Respondent took the second option to apply for dismissal for want of prosecution.
15.The Court of Appeal decision in Peter Kipkurui Chemoiwo Vs Richard Chepsergon (2021) e KLR when the Learned Judges discussed the application of Order 42 Rule 35 (1) Civil Procedure Rules dismissing an appeal filed in 2012 where the Appellant took no action to prosecute the appeal, thus denying the Respondent use and enjoyment of the fruits of his judgment. In the same breath, the court of Appeal in Airtel Networks Kenya Limited Vs – Nyutu Agrovet Limited (2021) e KLR, in similar circumstances held that
16.Further the court observed in Winnie Wanjiku Mwai Vs Attorney General & 3 others in Nairobi High Court Constitutional & Human Rights Division Petition Number 522 of 2015 that:
17.The classic test suit Ivita Vs Kyumbu (1984) KLR 441 set the principles in respect to dismissal of suits for want of prosecution. (including appeals) – to paraphrase that either:
18.In addition, in the matter of Mwangi S Kaimenyi Vs Attorney and another, Misc. Civil Suit No. 720 of 2009, the court restated the test as follows:
19.Upon examination of the tests set by the Court of Appeal in the decisions I have cited, there is no doubt that the Appellant has been indolent, and at all times waited for the Respondent to move the court for progression of the appeal.
20.It is trite that a case, including an appeal belongs to the Plaintiff (Including an Appellant) and at no time should the Appellant be pushed to take action unless it so wishes as ably stated under Order 42 Rule 35 (1) Civil Procedure Rule where it clearly states the Respondent shall be at liberty……
21.To that extent then, this court finds and holds that the failure by the Appellant to take the necessary steps to progress the appeal, more so after the certified proceedings of the trial court were provided leaves the Appellant without any reasonable or excusable reasons for its indolence, which for all purposes and intent have caused serious prejudice to the Respondent. There is no justice in my view, that can be done to salvage the appeal despite the Appellants failures and inexcusable delay.
22.For the above reasons, the Respondent’s application dated 21st August 2019 succeeds.Consequently, the following orders do issue:1.That the Appeal is hereby dismissed for want of prosecution.2.That the decretal amount deposited in court, in the sum of Kshs 300,000/- vide receipt number 0375120 on the 18th of January 2017 by the Appellant be released to the Respondent, Joseph Simiyu Wasike, through his Advocates forthwith.3.That interest on the decretal sum does accrue at court rates from the date of the judgment on the decretal sum together with costs as directed by the trial court in its judgment dated 28th July 2016.4.That costs of this application shall be borne by the Appellant.