Whether the applicant is entitled to an order setting aside dismissal of the appeal for want of prosecution.
9.Section 47 of the Law of Succession Act gives the court jurisdiction to entertain any application such as the present one which seeks to enforce the grant to meet the ends of justice. The law concerning dismissal of an appeal for want of prosecution is contained in Order 42 Rules 35(1) & (2) of the Civil Procedure Rules which provides as follows:-
10.It is trite law that the court’s discretion to set aside an order dismissing the appeal for want of prosecution is unfettered. In Richard Ncharpi Leiyagu vs IEBC & 2 Others eKLR, it was held that the court’s discretion to set aside an ex parte order or judgment for that matter is intended to avoid injustice, or hardship resulting from an accident, inadvertence or inexcusable mistake or error, but not to assist a person who deliberately seeks to obstruct or delay the course of justice.
11.In an earlier case of CMC Holdings Limited vs Nzioki (2004) eKLR 173 the court held that:-
12.I have perused the court record and noted that the appeal was filed on 18th July 2018 vide the applicant’s memorandum of appeal. The appellant sought to appeal against the Magistrate’s court’s judgment in Nyeri CM Succession Cause No. 47 of 2018 which was delivered on 16th July 2018. The applicant filed the record of appeal on 10th October 2018. No steps were taken by the applicant to have the appeal listed for directions for hearing. Pursuant to Order 42 Rule 11 of the Civil Procedure Rules, the applicant ought to have set down the appeal for directions within thirty days of filing the record but he failed to do so.
13.The respondents thus filed an application dated 12th April 2021 seeking for dismissal of the appeal for want of prosecution. The court heard the application on 28th June 2021 and upon confirming that the applicant was not present in court after having been served, the appeal was dismissed. It then took approximately one year for the applicant to institute the current application seeking to reinstate the appeal. The appellant stated that he was not served with the hearing notice of the application for dismissal or with the application itself. He further argues that in any event his appeal was admitted on 21/5/2021which was a month after the respondents filed their application to dismiss his appeal. Moreover, the applicant argues that the respondents have colluded in preventing the file from being brought to the High Court registry thus making the file untraceable. Notably, there is a letter dated 2nd August 2018 from the Deputy Registrar of the High Court informing the parties that the original record of the trial court was forwarded to the High Court.
14.Upon perusal of the lower court file and noted that after judgment was delivered, the applicant sought stay of execution of judgment and when the orders were granted on 7th September 2018 he did not attend court for the subsequent application until much later. I have also perused the High Court file and I am not convinced that the file went missing as the respondents managed to file a Notice of Appointment of Advocates on 20th March 2019. It is noted from the record that the process server served the applicant with this application dated 12th April 2021 together with the hearing notice. On further perusal, it is noted that the applicant has been served severally with the application. On the date in issue, the 1st respondent accompanied the process server and pointed out the applicant to the process server. Moreover, I have perused the lower court file and noted that during the hearing before the Magistrate, the applicant testified that he lived in Endarasha Location. I am therefore not convinced that the applicant is telling the truth that he was never served and that he does not reside at Endarasha. The parties herein are brother and sisters and they would know where each of them resides in normal circumstances.
15.Looking at the merits of this application, I find that the applicant is guilty of laches. After obtaining stay of judgment, he went to sleep. The appeal was in court for about three years before admission. It was upon the applicant to hasten the prosecution of the appeal by taking the necessary steps. After he filed the record, the appellant did not move the court for taking of directions. After dismissal of the appeal, it took one (1) year for the appellant to file this application. The actions of the appellant portray him as a litigant who had lost interest in the appeal.
16.I have perused the judgment and noted that the honourable Magistrate distributed the assets of the deceased in accordance with the provisions of Section 38 of the Law of Succession Act among all the beneficiaries who are children of the deceased. It is therefore, unlikely that on appeal the applicant would get a different outcome. Without pre-empting the appeal, I am of the view that it has very limited chances of success.
17.I find no merit in this application and it is hereby dismissed.
18.Each party to meet their own costs.
19.It is hereby ordered.