Francis Drummond Investment Bank v Mwambia & another [2022] KEHC 16142 (KLR)

Francis Drummond Investment Bank v Mwambia & another (Civil Appeal 413 of 2011) [2022] KEHC 16142 (KLR) (Civ) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16142 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 413 of 2011

JK Sergon, J

December 9, 2022

Between

Francis Drummond Investment Bank

Appellant

and

Justus M’Noti Mwambia

1st Respondent

Obadia Muhati t/a Brond Insurance Agencies

2nd Respondent

Ruling

1. Before this court are two applications; the apellant's application dated July 19, 2021 (hereinafter referred to as the apellants application) and the 1st respondent's application dated June 30, 2021 (herein after referred to as the 1st respondent's application).

2. The 1st respondent's application dated June 30, 2021 is seeking for orders that;i.Spent;ii.The sum of Kshs 225, 118. 00 deposited in court on February 3, 2012 by the apellant be released to the 1st respondent's Advocates on record;iii.Costs be provided for.

3. It is premised on the grounds on the face of it and the depositions in the supporting affidavit sworn by Patrick Kimathi Muchena. It is stated that the appeal herein has been dismissed and that the appellant failed to comply with the orders of this court issued on October 26, 2020 and as such the stay of execution pending the determination of this appeal has since lapsed.

4. It is stated that the matter was last in court on June 17, 2021 when the apellant's notice of motion application dated November 24, 2020 was dismissed and the respondent's preliminary objection dated December 11, 2020 was allowed. Further that the apellant's notice of motion dated November 24, 2020 sought to review the ruling of this honorable court of October 26, 2020 which ordered the apellant to pay the respondent a throw away costs of Kshs 50,000/= within 30 days failure to which the appeal shall stand dismissed.

5. It is further stated that the apellant was granted stay of execution on December 16, 2011 of the judgment and decree of July 29, 2011 pending the hearing and determination of the appeal on condition that the decretal amounting Kshs 211,258/= be deposited in court which appeal has since been dismissed and it is only fair that Kshs 225,118/= deposited by the apellant in court be released to the 1st respondent. That is clear that the apellant has not been vigilant in prosecuting its appeal and has only engaged in litigation to delay the 1st respondent's enjoyment of his fruits of the judgment.

6. The 1st respondent's application is opposed by the apellant vide a replying affidavit dated and sworn by Wellington Wepukhulu on October 6, 2021. It is stated that in a ruling delivered on October 26, 2020 the court reinstated the appeal for hearing on condition that the apellant pays the 1st respondent throw away costs of Kshs 50,000/= within 30 days failure to which the appeal stands dismissed.

7. Further that the apellant filed an application dated November 24, 2020 seeking to stay the said orders pending the determination of the appeal as well as review the order on costs wherein interim orders were issued pending the determination of the application and which application was later dismissed on June 17, 2021 and the stay orders in place have since lapsed.

8. It is contended that the apellant is willing to pay the throw away costs subject to this court granting leave and an order enlarging time within which to comply in order to allow the apellant prosecute its appeal.

9. It is stated that if the 1st respondent's application is allowed, the same is going to be prejudicial to the apellant and its appeal will be rendered nugatory. The apellant contends with its appeal is merited and has high chances of success hence it is in the interest of justice that the same is allowed.

10. The apellant's application dated July 19, 2021 is seeking for orders that;i.Spent;ii.The orders issued by this court on October 26, 2020 directing the apellant to pay the 1st respondent throw away costs in the sum of Kshs 50,000/= within 30 days be reinstated and extended;iii.This honorable court do enlarge and extend the time within which the apellant is to pay the 1st respondent throw away costs in the sum of Kshs 50,000/= as directed by the court in the ruling delivered on October 26, 2020;iv.Costs be in the appeal

11. It is premised on the grounds on the face of the application and in the depositions in the supporting affidavit of Wellington Wepukhulu sworn on July 19, 2021. It is stated that the appeal was dismissed on June 10, 2019 and was reinstated vide a ruling of October 26, 2020 on condition that the apellant pays the respondent throw away costs Kshs 50,000/= within 30 days from the date therein failure to which the appeal shall stand dismissed. That the apellant filed an application dated November 24, 2020 seeking to stay the orders and review them but the application was dismissed on June 17, 2021 hence this application.

12. Further that the apellant is keen on prosecuting the appeal since it had deposited the decretal sum in the joint interest earning account and that If the respondent's application is allowed, the appeal will be rendered nugatory and the apellant will suffer great loss.

13. The application is opposed vide a replying affidavit of Patrick Kimathis Muchena. It is stated that the appeal herein has already been dismissed by virtue of the self-executing orders of October 26, 2020. That the same has been brought in bad faith in orders to further delay and deny the respondent the enjoyment of its their fruits of the judgment.

14. Further that the apellant has been indolent and not willing to prosecute the appeal herein sand as such it should be dismissed. On particulars of indolence, it is stated that judgment which is the subject of the instant appeal was delivered on July 8, 2011 and since then, the appeal has never been set down for hearing. That on October 28, 2016, the apellant was ordered to set down the appeal for hearing but it took it a year and 8 months for them to invite the respondent to fix a hearing date which date they did not appear.

15. That owing to this, the respondent filed an application dated January 27, 2019 to dismiss the appeal for want of prosecution. That on June 10, 2019 when the said appeal was coming up for hearing, the apellant did not show up and the appeal was dismissed. The appeal was reinstated on 26th October and the apellant was directed to file and serve submissions by 9th November which submissions have never been filed. That on November 26, 2020 the matter was coming up for further directions on the orders of October 26, 2020 but the apellant did not appear. That these delays but the apellant have been and continues to prejudice the respondent.

16. On enlargement of time, the principles applicable were set out by the Supreme Court of Kenya in theNicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR as follows:“This being the first case in which this court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a court should consider in exercise of such discretion:1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court.5. Whether there will be any prejudice suffered by the respondents if the extension is granted;6. Whether the application has been brought without undue delay; and7. Whether in certain cases, like election petitions, public interest should be consideration for extending time.”

17. From the description of the particulars of indolence at paragraph 9 of the respondent's replying affidavit, it is clear that the apellant has not been vigilant in the prosecution of its appeal. I am inclined to believe that the apellant is not a deserving party and is only using the orders of this court to prejudice the respondent. It is now about 11 years since the judgment was delivered and the appeal is yet to be heard. It is trite law that litigation must come to an end. The apellant's application is an abuse of the court process since it is filed to only delay the respondent's enjoyment of the fruits of its judgment. The apellant has never obeyed any orders of this court especially the timelines.

18. Owing to the above, the respondent's application dated July 19, 2021 is without merits. The same is dismissed with costs to the respondent.

19. Having dismissed the apellant's application, it goes without saying that the respondent's application dated July 30, 2021 succeeds hence the same is allowed as prayed with no order as costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 9TH DAY OF DECEMBER, 2022. J K SERGONJUDGEIn the presence of:……………………………. for the apellant……………………………. for the 1st respondent.................. for the 2nd respondent