Anthony Kamweti Kariuki v P N Mashru Limited [2019] KEHC 6307 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CIVIL APPEAL NO. 71 OF 2013

ANTHONY KAMWETI KARIUKI.....................................................APPELLANT

VERSUS

P. N. MASHRU LIMITED................................................................RESPONDENT

RULING

1. The appellant prays that this appeal be reinstated.

2. On 29th November 2017 the appeal had been listed, on the court’s own motion, for Notice to Show Cause. In lieu of dismissal, the appellant was ordered to file and serve the Record of Appeal within 30 days. In default the appeal would stand dismissed.

3. The appellant did not comply. On 13th March 2018, the appellant purported to list the matter for mention for “directions”. The court re-affirmed the order dismissing the appeal.

4. The appellant has filed a notice of motion dated 17th April 2018. He now contends that there was a related appeal being High Court Civil Appeal 174 of 2013 to which the original lower court file was tagged. He only got to learn of the mix-up on 31st May 2018. It was thus not possible to comply with the directions of the court issued on 29th November 2017.

5. The appellant has in the meantime lodged and served the Record of Appeal. Those matters are detailed at length in a deposition sworn by the appellant’s counsel on 17th April 2018. I heard learned counsel to say that the delays emanated from factors beyond his control.

6. The application is contested by the respondent. There is a replying affidavit dated 12th July 2018. They are two-fold: that the application is incompetent; and, it is mala fides or an abuse of court process.

7. On 10th June 2019 I heard learned counsel for the appellant and respondent.

8. The directions of the court of 29th November 2017 were unequivocal: the appellant was to file and serve the Record of Appeal within 30 days. In default the appeal would stand dismissed. I thus readily find that when the appellant sought further directions on 13th March 2018, the appeal had been dismissed by operation oftime.

9. The High Court is a court of record. I examined the record in High Court Civil Appeal 174 of 2013. I am satisfied that the original file of the lower court in Murang’a PMCC 70 of 2011 was attached to that appeal file. I have no reason to doubt the appellant’s counsel that he only learnt of it on 31st May 2018.

10. I am fortified because on the date of hearing of this appeal, I made a formal order to transfer the records of the lower court from that other appeal to this one. I am thus satisfied that the appellant was not entirely at fault in failing to meet the timelines set by the court.

11. Furthermore, the appellant has since filed and served the Record of Appeal. The overriding objective of the court dictates that he be reinstated to the seat of justice ex debito justitiae. See Remco Ltd v Mistry Jadva Parbat & Company Ltd & others[2002] 1 E.A. 233.

12. The upshot is that the order dismissing the appeal is unconditionally set aside. Costs shall be in the appeal.

It is so ordered.

DATED and DELIVERED at MURANG’A this 27th day of June 2019

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of-

Mr. Gitonga holding brief for Mr. Ngare for the appellant instructed by S. N. Ngare & Company Advocates.

No appearance by counsel for the respondent.

Ms. Dorcas and Ms. Elizabeth, Court Clerks.