4.It is the Applicant/Respondent's case that the Respondent/Appellant filed a memorandum of appeal way back on 3rd April 2021 that the Respondent/Appellant has never filed his record of appeal and has since the filing of the memorandum of appeal, not made any deliberate attempts to have the matter listed for directions to-date.
5.It is his submission that the delay by the Respondent/Appellant in listing the appeal for directions is inordinate and inexcusable. It is their case that the Respondent/Appellant's inaction is calculated to ensure the Applicant/Respondent is denied the right to enjoy the fruits of a lawful judgment hence causing an injustice to them and for that reason, they stand to suffer prejudice unless the court intervenes.
6.The Applicant/Respondent submit that, Order 42 Rule 35 of the Civil Procedure Rules 2010 envisages scenarios for the dismissal of an appeal for want of prosecution. The first scenario is when an appellant just like in the present appeal 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.
7.The second scenario is that if after service of memorandum of appeal, the appeal would not have been down for hearing the registrar shall on notice to the parties list the appeal before the judge for dismissal, It is now not in dispute under Order 42 Rule 35 (2) of Civil Procedure Rule, it stipulates that:-
8.The Applicant/Respondent submit that, in the case of Protein & Fruits Processors Limited & Anor Vs Trust Bank Kenya Ltd (2015) eKLR the court held that, under Order 2 Rule 35 of the Civil Procedure Rules 2010, an appeal can be dismissed even if directions have not been given
9.It is his humble submission that, this court has a wide unfettered discretion to dismiss an appeal before discretions given. Whether there are sufficient grounds or reasons, the court can involve its inherent powers as bestowed on it by the Civil Procedure Act and the Rules and dismiss an appeal for want of prosecution even where directions have not been given. Odunga J in China Road & Bridge Corporation Vs John Kimenye Muteti (2019) eKLR held: -
10.Further reference was placed on Abraham Style Investment Company Ltd (2020) eKLR. And Mukhola Asitsa Vs Silver.
11.Reliance is placed on the case of Haron E Ongechi Nyaberi vs British American lnsurance Co Ltd HCCA No 110 of 2001 eKLR (sic) where it was held that-
12.Applicant/Respondent also averred that the Appellant was granted leave to file an Appeal out of time over a year ago and had since that time not taken any steps to prosecute the Appeal herein.
13.The Applicant/Respondent submit that, on his part, the Respondent/Appellant argued that the Respondent/Appellant had not demonstrated the prejudice she would suffer if he was given more time to prosecute his Appeal. He asked this court to take judicial notice of the backlog of the typing of proceedings in the lower court. It was his argument that the application herein was premature and grossly misconceived.
14.He relied on the cases of Jurgen Paul Flach vs Jane Akoth Flach (2014] eKLR wherein Kasango J held:
15.The Applicant/Respondent, place reliance on the case of Allan Otieno Ofula vs Gurdev Engineering & Construction Ltd  eKLR where Aburili J observed that the right of appeal is (sic) constitutional right and in as much as there has been delay which has not been satisfactorily explained by the appellant", the court has to weigh the cost and prejudice a respondent is to suffer if the appeal was struck out before it was heard on merits. The Appellants are interested in pursuing this Appeal contrary to the assertions by the Respondent.
16.That indeed, the Appellants instituted this Appeal vide a Memorandum of Appeal dated 3rd April, 2021 against the Judgment of the Hon. Munyi, delivered on 24th March, 2021 in Nakuru CMCC 91 of 2019.
17.That, the Appellants complied with stay conditions by depositing Kshs. 255,788 in Court and paying an equal amount to the Respondent's Advocates.
18.That, the Appellants have not been able to retrieve the typed proceedings and have written letters to the Court seeking the same and which letters their Clerk visits the Registry with to follow up.
19.That, the Appellants contend that the delay, which is not inordinate, cannot be occasioned to them but to the lower Court which has not caused the proceedings to be typed.
20.That, in any event, there has been no delay occasioned so far in filing and serving the Record of Appeal and if there were, such delay is not as unreasonable and/or inordinate as to prejudice the Respondents and such delay can always be compensated by an award of damages and costs.
21.That, before the Respondent can move the court either to set the Appeal down for hearing or to apply for dismissal for want of prosecution, under want of prosecution, directions ought to have been given as provided under Order 42 Rule 35 which is the governing provision in dismissal of Appeals for Section 79B of the Civil Procedure Act. Since directions have not been given, the orders sought by the Respondent should not be entertained.
22.That, the present application is premature and intended to defeat the ends of justice.
23.That, under Order 42 Rule 35 (2), it is only the Registrar who can list an Appeal before a judge in chambers for dismissal if directions under Section 79B of the Civil Procedure Act have not been issued. I am also advised that since Order 42 Rule 35(2) is couched in mandatory terms, a party filing an Application like the present one is considered to be usurping the duties of the Deputy Registrar. In the circumstances, this Application is premature.
24.That, the Appellants thus contend that the Appeal ought not to be dismissed on the following grounds;
25.That, the Appellants are following up on proceedings and complied with stay by depositing security.
26.That, the court has unfettered discretion under Sections 1A and 3A of the Civil Procedure Act to ensure not only just and expeditious disposal of matters but also the inherent power to make such orders as may be necessary for ends of justice, and we implore the court to exercise such discretion to allow the Appellants prosecute their Appeal.
27.That, though the overriding objective is expeditious disposal of suits, the Constitution mandates that the same must be done justly, equitably and proportionately to the Appellant's right to a fair hearing.
28.That, the Appellants believe that they have a viable Appeal which is against quantum as awarded by the trial court and as such stands to suffer serious prejudice in the unfortunate event that the Appeal is dismissed tinus denying the Appellant to have its Appeal determined on its merits and thus condemned to settle to the lower court award.