Isaac Wafula v John Simiyu, James Makokha & Isaac Wamachari Kasisi [2017] KEHC 2840 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

CIVIL APPEAL NO. 60 OF 2010.

ISAAC WAFULA……....................…APPELLANT/APPLICANT

VERSUS.

JOHN SIMIYU……………..………………..1ST RESPONDENT

JAMES MAKOKHA………………………..2ND RESPONDENT

ISAAC WAMACHARI KASISI......................3RD RESPONDENT

RULING.

[1].The applicants Motion is dated 12th October, 2016.  It is brought under Sections 1A,  1B, Sections 3 3A of the Civil Procedure Act 2010 and Order 50 Rule 20 and 51 Rule 15 of the Civil Procedure Rules 2010.  The applicant seeks for orders that there be a stay of execution of costs or decree in the lower court case No. CMCC No. 465 of 2009 pending the determination of this application inter partes.  Further, that the appeal which was dismissed on 11/10/2016 be reinstated and that the applicant be allowed to proceed to prosecute the application dated 8/8/2016 and oppose the application dated 12/9/2016.

[2].The application is grounded on the fact that the appellant had already filed a replying affidavit against the application for dismissal which was due for hearing on 11/10/2016 and that there was an application by the appellant to amend the Memorandum of Appeal slated for hearing on the same day the appeal was dismissed to wit 11/10/2016.  It is also argued that the appellant was in court when the appeal was dismissed and that the advocate for the appellant was only five minutes late.  That his lateness was occasioned by a breakdown of his vehicle on the material time and that the appeal was dismissed at 9. 30 a.m.  Finally that the appeal has high changes of success.

[3].The application is opposed by the respondent who filed a replying affidavit sworn on 28/10/2016 by one John Simiyu Kasisi.  He states that the application lacks merit and it should be dismissed with costs.  He argues that there were two applications coming for hearing on the same day.  One by the applicant dated 8/10/2016 for amendment of his Appeal and another by the respondent dated 3/9/2015 to dismiss the appeal for want of prosecution having stayed in excess five years.  That the respondent was in court at 9 a.m. when the court started its session.  That their case was second on the cause list and was called out at 9. 30 a.m.  That is not true that the appellant’s advocate was late for five (5) minutes.  That the appeal has no chances of success.

[4].When this matter was called out for the two applications, the applicants advocate was not in court.  His client if he was in court at all did not respond.  Mr. Situma Counsel for the respondent argued his application that had been filed on 3/9/2015 to dismiss the Appeal for want of prosecution.  He argued that the Appeal was filed in 2010 and that no action had been taken for a period of over five years.  He told the court that the 3rd respondent passed on in 2011 and he had him removed from the proceedings way back in 2014.  He argued that at the time of arguing his application, six years had elapsed without any action being taken.  It was his submission that the respondent had lost interest in his appeal.  That the delay of Six years was an inordinate delay.  He prayed for his application to be allowed.  After perusing the reply by the applicant to the application filed in court for dismissal of the Appeal, I found nothing that could explain the delay.  I allowed the application to dismiss the Appeal for want of prosecution.  The application by the applicant to amend the same was therefore overtaken by events as there was no Appeal to be amended.

A party that files an Appeal to court has duty under Section 1A (3) of the Civil Procedure Act to see to it that the Appeal is heard expeditiously and without unnecessary delay.  The Defendant can apply for its dismissal under Order 42 rule 35.  The delay herein was of six (6) years and such delay is inordinate.  This was the delay Mr. Kituyi and his client were bound to explain in their Affidavit of 25/7/2016 but did not.  They never came to court to explain that delay when the application was fixed for hearing by consent.  The application filed herein is without merit and I dismiss it with costs.

Judgment read in Court in presence of Mr. Anwar.

DATED at BUNGOMA this 3rd  day of  October,  2017.

S. MUKUNYA

JUDGE.

In the presence:

Joy/Gladys:  Court Assistant

Mr. Anwar for the Respondent

Mr. A.W. Kituyi for the Appellant