Barack Allan Abuto v Sudan Production Aid [2015] KEHC 2490 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL   APPEAL NO.  480   OF 2006

BARACK ALLAN ABUTO……………APPELLANT/RESPONDENT

VERSUS

SUDAN PRODUCTION AID…….....……RESPONDENT/APPLICANT

RULING

By a notice of motion dated 1st July 2014, filed on 7th July 2014 the Respondent/Applicant Sudan Production Aid seeks from this court orders:

That the appeal herein be dismissed with cost for want of prosecution.

Those costs of this application and the appeal be awarded to the applicant/respondent.

The application is predicated on the grounds that the appeal herein was filed in 2006 and since then the appellant has lost interest in prosecuting the appeal.

Further, that it is in the highest interest of justice that the application be allowed as the pendency of the appeal is prejudicial to the applicant.

The said application is further  supported by the affidavit of Watson  Kagucia Burugu advocate for the  applicant who deposes, reiterating  the grounds in support of the application  that since  the appeal was  filed on 19th July 2006  and served  upon the respondent on 2nd August  2006, the appellant  has never  taken any steps  to have  the appeal  set down for hearing, an  indication that he  has lost interest in the appeal and that it  is only fair and just that the appeal be dismissed for want of prosecution.

The appellant/respondent Barack Allan Abuto opposed the application  through a replying affidavit  sworn  by Zena  A. Rashid  advocate  on 11th August 2014  and filed in court instant.

She deposes that it is  not true that  the appellant  had lost interest  in  pursuing  the appeal as  he had  done all that was required to be done  under the law  in that  after lodging  the appeal within  the stipulated period, he applied  for  copies of proceedings, judgment and  exhibits.  However, that to date he has never been supplied with the said documents by the subordinate court.

In addition, counsel for the appellant deposes that the delay  in filing  the record  of appeal has therefore  been occasioned by failure on  the part of the Chief Magistrate’s  court registry  to supply them with  the copies for which payments  had been made  as shown  by annexture ‘A’.

Further, it is contended that the dismissal of the appeal would condemn the appellant unheard   which amounts to punishing him for mistake of the Chief Magistrate’s Court registry.  Counsel for the appellant further asserts that as soon as they are supplied with typed copies of the  proceedings, judgment, exhibits and decree  for which they had already  made  applications, they would prepare  and lodge  the record of appeal.

In a rejoinder, the applicant filed a  supplementary affidavit sworn on 26th  November 2014  and filed on 27th November 2014  contending that  there was no  evidence  of any follow  up of the  proceedings  after the  initial  request  made by letter dated  14th July  2006.  Counsel for the respondent/applicant also annexed a copy of  proceedings “WKBI” to show that the proceedings  in the lower court had been typed and therefore   it was not  true as  contended  by the appellant  that he had done all that was  required  to obtain the lower  court record  in vain.

The applicant’s counsel also filed a  list of authorities  to be relied  on at the hearing in support  of  the application for dismissal of  the appeal for want of prosecution.

When the application came up for interpartes hearing on 21st May 2015, the record  shows that the  appellant  had by letter dated 24th March 2015 been invited to fix a suitable  hearing date but  they did not attend court  on  24th March 2015 and the applicant  was given  21st May 2015  for hearing.  The applicant effected  service of a hearing notice upon the appellant’s counsel M/S Otieno Omuga Advocate on 1st April 2015 at 3. 00p.m.  The  said appellant’s advocates  did not attend  court for the hearing  of the application.  I therefore  allowed the applicant’s advocate  Miss  Oloo to proceed  and prosecute the  application.

Miss Oloo submitted, replying on the grounds in support  thereof  the application, the supporting affidavit  and the supplementary affidavit  that the  appellant was guilty  of laches for  8 years since 2006  and that the replying affidavit  did not  explain  the reasons for  the prolonged  delay  in the matter.  She urged the court to allow the application and dismiss the appeal for want of prosecution.

I have carefully considered the application by the respondent/applicant brought under the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act Cap 21 Laws of Kenya and Order 51 of the Civil Procedure Rules.  I have also considered the opposing affidavit by the appellant/respondent.  I note  that the appeal  herein was  filed  on 19th July 2006  following  the impugned  judgment  of Mrs A.N.Ongeri Ag principal Magistrate ( as she  then was ) dated 27th June 2006  on the same day  the Deputy Registrar  of the High Court  did issue  notice  to the CM’s court to avail the  original record  in Milimani CM CC 480 of 2006.

The appellants  annextures  attached  to his replying affidavit show that on  14th September 2006, 7th September 2006  his advocate requested for the necessary documents including  proceedings, judgment, submissions and exhibits as well as  decree and certificate of costs.

The  last time there was  such communication by the appellant  to the lower court  was by  his letter of  14th September 2006, from there the matter was awakened  by the respondent/applicant herein  filing an application  herein  dated 1st July 2014  on 7th July 2014  seeking to have the appeal  herein dismissed   for want of  prosecution.

The applicant  invoked  the overriding  objectives  of the Civil Procedure Act  as well as  the inherent jurisdiction of the court to urge this court to  dismiss the appeal for want of prosecution  due to the  unexplained inordinate  delay in setting down the appeal for hearing since no directions  have been given  under Section 79B of the Civil Procedure Act Precisely, from the time the appeal  herein was lodged to the time  the respondent/applicant sought  for its dismissal   was 8 years  without  any effort by the  appellant  being made  to have  the appeal reached for trial.

The appellant’s explanation is that he paid for  and requested  for the  supply of the necessary documents and that since  September 2006 there has been no action by the Chief Magistrate’s Court  in availing the said  records  hence the said court is to blame for the delay.

Under Order 42 Rule 35 (1) of the Civil Procedure Rule  where there is no action in  the appeal  for a period  of I year, the respondent may set it down for  hearing or apply for its dismissal  for want of prosecution if within  3 months  after giving directions  under Rule 13, the appellant  shall not have set  the appeal down  for hearing.

In this case, no directions have been given and the appeal has not even been admitted to hearing.

However, the court  has inherent  jurisdiction  to order dismissal of an appeal  for want of prosecution  even when  directions under Order 42  Rule 13  or Section 79B of the Civil Procedure  Act  and Rules  have not been given.

This court has inherent power which may be exercised as may be necessary to prevent abuse of its process.

In my humble view, an  appeal which is lodged and 8 years  down the line  there is no semblance of any effort or intention  to ready it for hearing  or to have it prosecuted is an abuse of the court process and calculated  to delay and or obstruct the cause of justice.

Article 159 (2) of the Constitution of Kenya enacts that in exercising judicial authority, the courts and tribunals shall be guided by the principles that :

Justice shall be done to all, irrespective  of status;

Justice shall not be delayed .

……………

…………………

The purposes and principles of the Constitution  shall be protected and promoted .

The above provision of Article 159(2) (b) echo the well known equitable principle that justice  delayed  is justice denied, and  that delay  defeats equity.  In addition, it is trite  that equity aids the vigilant  and not the indolent.

In my view, there is good and sufficient reason to have this appeal dismissed.

The parties and their advocates are enjoined under Section 1A and 1B of the Civil Procedure Act to assist the court in dispensing expeditious justice.  There  can be  no justice for the  parties  if  for 8 years  the appellant  has archived  his pleadings before this court and  only  cries foul, blaming  the Chief  Magistrate’s  Court  for inaction  in failing  to supply him with  the documents  necessary  for the preparation  of the appeal  for hearing.

Not a single letter or reminder in 8 years was exhibited to show that the lower court has refused to act on the request.  The annexed letters all written immediately after lodging this appeal were written between July and September 2006.  There  is no evidence  that the  appellant’s advocates  even made any physical attempt to see the chief  magistrate or executive officer  to explain to them the position or requested the Deputy  Registrar  of the High Court  to request  for the lower record in 8 years.

In my view, a delay of 8 years which is not explained is inordinate and contumelious.  Justice cannot  be served if  parties  simply file their pleadings  and go to  slumber, clogging the courts  with the so called  backlog  while burdening the respondent  with a pending  appeal and denying  it a legitimate expectation that the matter  would be resolved expeditiously.  Furthermore there is no evidence to show that the appellant indeed has any interest in this appeal.  If that were so, nothing prevented him from availing himself to the court to swear the affidavit in person to explain his case out.  Instead only his advocate attempted to explain the delay in an affidavit.  Further lack of interest in the appeal is demonstrated by the non appearance by his counsel on the hearing of this appeal to defend their position as per the sworn affidavit.  There is evidence that the respondent/applicant obtained a copy of proceedings of the lower court as annexed to the supplementary affidavit.  The appellant has not demonstrated that he was denied the proceedings as requested and paid for, for the last 8 years.

In the end, I find that the appellant has not made any effort since 2006 to have this appeal heard and concluded.  This application by the respondent is therefore justified on all fours.  This court must zealously guard against abuse of its process and justice being delayed.

For those reasons, I allow the respondent/application dated 1st July 2015  and dismiss the appeal herein for want of prosecution, invoking the provisions of Sections 1A, 1 B and 3A  of the Civil Procedure Act  as well as Article 159(2) (b) of the Constitution.

The respondent/applicant shall have costs of this application and of the appeal as dismissed.

Dated, signed and delivered in open court this 31st  day of July 2015.

R.E. ABURILI

JUDGE

31/7/2015