James Ndirangu Ng’ang’a v Busia Dairy Farmer Co. Soceity [2014] KEHC 2324 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

HCCA. NO. 27 OF 2008.

JAMES NDIRANGU NG’ANG’A.................APPELLANT/RESPONDENT

=VERSUS=

BUSIA DAIRY FARMER CO. SOCEITY....................RESPONDENT/APPLICANT

R U L I N G .

JAMES NDIRANGU  NG’ANG’A , hereinafter  referred to as the Applicant,  filed  the notice of motion under certificate of urgency dated 14th July, 2014 through M/S. Kiplenge & Kurgat Advocates for an order  that the  ‘’ appeal stands dismissed’’ with costs. The application is based on six grounds on the face of the application summarized as follows:-

That after the appeal was filed on 12th November, 2008, a consent order was recorded on 8th January, 2009 for stay of execution on condition that the Appellant  deposited  in the joint names of the parties  advocates Kshs.400,000/=.

That the appeal is yet to be prosecuted and the Appellant has not deposited the money contrary to the consent order of 8th January, 2009.

That the Appellant filed an application for security of costs in which  the court ordered Kshs.400,000/= to be deposited in an interest earning account  in the joint  names of the parties  advocates in 21 days, and in default the appeal to stand dismissed.

That the Appellant defaulted and the appeal therefore stands dismissed.

The application is also based on the supporting affidavit of James Ndirangu Ng’ang’a sworn on 14th July, 2014.

The application is opposed by the Appellant, Busia Dairy Farmers Co-operative Society,through the replying affidavit of Joseph Vitalis Juma sworn on 22nd July, 2014.

During the hearing of the application on 16th September, 2014, Mr. Kurgat and Mr. Juma advocates for the Respondent/Applicant  and Appellant/Respondent respectively made their submissions.

The court has carefully considered the grounds on the face of the application , the supporting and replying affidavits and the annextures  thereto. The court has also considered the submission by both  counsel and find as follows;

That on 27th November, 2013, the court allowed the Respondent’s/Applicant’s application dated 7th August, 2013  in terms of  prayer (a). The order was  that the Appellant/Respondent was to provide security  for costs by depositing  Kshs.400,000/= in an interest earning  account in a Commercial Bank agreed between  the parties in the joint names of the  parties within 21 days and in default the appeal shall stand dismissed.

That the deposit was not done until after 5th March, 2014 as evidenced  by the Appellant’s/Respondent’s counsel’s letter of the same date attached to the replying affidavit .

That the order giving 21 days within which to make  the deposit was  made on 27th November, 2013. The  21 days  expired on the 18th  December, 2013.

That though counsel for the Appellant/Respondent  has indicated that the  then counsel for the Respondent/Applicant  had by their conduct agreed to the deposit being made outside the 21 days period, there was no written consent to that effect presented to the court.

That the  Appellant/Respondent  did not apply for and obtain  the extension of the  time before or after the expiry of the 21 days  prescribed  by the order of 27th November, 2014 in accordance with  Order  50 rule  6 of the Civil Procedure Rules. The court notes that even to date  there is no application for extension  of time to comply with the order of 27th November, 2013 that has been  filed in these proceedings by any of the parties.

That Order 42 Rule 14 (3)  of Civil Procedure  Rules  allows the court to dismiss  the appeal  where  an order for security  of costs is not complied with within the given period.  In the instant case, the order of 27th November, 2013  was self executing in that it stated that the appeal  would stand  dismissed  if the Appellant/Respondent  failed to comply with the order  in 21 days. The decision  of the Court of Appeal in Pancras T. Swai –vs- Kenya  Breweries Limited (2014) eKLRwhich upheld the decision of the High court  which had dismissed an application for review of  an order to provide security for costs and dismissal of  the suit for failure to comply with the order of security of costs is relevant.  However  the following  six cases  cited by the Respondent’s/Applicant’s counsel relates to instances where injunction orders  were issued and the suits dismissed for remaining without being prosecuted for over one year and therefore  not relevant to this matter.

Bushasha Lucheri v Joseph Langat Sitenei & Anor[2012]eKLR.

David  Mbuvi & Anor v Kenya Ports Authority [2014]eKLR

Eliakim Washington Olweny v Wilson Kobor Mutai & Anor[2013] [eKLR.

John Kennedy Monyoncho & Anor v Charles  Ukumu Maluki & 4 Others [2014]eKLR

Leah  Nyambura Mburu v Barclays of Kenya Ltd [2012]eKLR

Seifudeen Abdallah Bhai v Zainab Mwinyi [2013]eKLR.

That the Appellant/Respondent  has not been diligent since filing the appeal as they would otherwise  have  complied with the orders of 27th November, 2013 within the time given or moved the court for extension of time.

For reasons set out above, it is the finding of this court that the Appellant’s/Respondent’s appeal stood dismissed at the expiry of 21 days  from 27th November, 2013. The application dated 14th July, 2014 is therefore granted in terms of prayer 2 with costs.

S.M. KIBUNJA.

JUDGE.

DATED AND DELIVERED ON  22ND DAY OF OCTOBER, 2014

IN THE PRESENCE OF; RESPONDENT/APPLICANT, Mr. Titus Wanyola/Chairman for Appellant/Respondent/Mr. Juma for Appellant/Respondent and Mr. Okutta for Kurgat for Applicant/Respondent.

JUDGE.