John Oluoch Salala v Richard Miyumo Ogero [2015] KEHC 4762 (KLR)

REPUBLIC OF KENYA

IN HTE HIGH COURT OF KENYA AT KISUMU

CIVIL APPEAL NO.178 OF 2011

JOHN OLUOCH SALALA:::::::::::::::::::::::::::::::::::::::::::APPELLANT

VERSUS

RICHARD MIYUMO OGERO::::::::::::::::::::::::::::::::::RESPONDENT

RULING

This is a Ruling on a Notice of Motion filed here on 7/5/2013 and dated 3/5/2013.  The Respondent – RICHARD MIYUMO OGERO – filed it against the Appellant –JOHN OLUOCH SALALA.  The Application is stated to be brought under Order 17 Rule 2 (3), order 51 Rule 1 of Civil Procedure Rules, and sections 1A and 3A of Civil Procedure Act (Cap 21).

In essence, the Respondent seeks to have the Appeal herein dismissed for want of Prosecution.  He also seeks  provision for costs of the application. According to the Respondent, there is inordinate delay in prosecuting  the Appeal, the same having been filed over 1 ½ years ago.  The delay is said to be causing anxiety, and the fair thing to do therefore is to dismiss the Appeal.

The Appellant responded vide a Replying Affidavit filed on 23/10/2014 and dated 22/10/2014.  The delay, it is deponed, is nothing of the Appellant's making.  It was pointed out that a decree is required as part of the Appeal. There was delay in getting the decree from the subordinate court.  But the decree, it was further deponed, is now available and the Appellant is raring to go.

The Respondent was also faulted for bringing the Application under the wrong Provisions of Law; Order 17 Rule 2(3) instead of Order 42 Rule 3(4)(b) of Civil Procedure Rules, 2010.

Written Submissions  were availed in lieu of oral arguments.  I have read and considered the submissions.  I note that the Respondent belatedly sought to amend his Application to cite the correct law in his submissions. It is something the other side faulted, pointing out that amendments  can not be done at that stage.

I have considered the material laid before me.  It seems to me to be true that the Appellant may not be entirely to blame for the delay in prosecuting the Appeal.  The decree was issued on 8/8/2014.  The Memo of Appeal was filed on 24/11/2011.  A decree is a necessary requirement in the Appeal.  It was issued on the date aforesaid and the Appeal could not be prosecuted before then.  The Respondent has not  controverted  this position convincingly.

I agree with the Appellant also that the Application is brought under the wrong law.  The belated attempt to correct the position at the stage of submissions does not help matters.  It is unacceptable.  It is an exercise in futility.  It was inapt to invoke Order 17 Rule 2(3) of Civil Procedure Rules while the correct law is Order 42 Rule 13(4)(b) of Civil Procedure Rules, 2010.  It was equally inapt to try to amend at the stage of Submissions.  All this works against the Respondent.

All considered, it is apposite to allow Prosecution of the Appeal. The Application as brought is defective and, even assuming it was not, its merits have not been demonstrated.  In fact the Appellants rebuttal  of the Respondent averments is more convincing.

Without much ado therefore, the Application herein is dismissed.  Costs will be in the cause.

HON. A.K. KANIARU

LAND- JUDGE

7/5/2015

7/5/2015

A.K. Kaniaru-J

John Ogendo – Cc

Respondent – present

Appellant absent

Jamsumba for Otieno for Appellant

Odeny for Respondent

Court:Ruling on Notice of Motion dated 3/5/2013 read and delivered in open court.  Right of Appeal 30 days.

HON. A.K. KANIARU

LAND-JUDGE

7/5/2015