Joram Adala Okubi v Musa Oundo Musalama & Samuel Mulera Lukri [2017] KEHC 7410 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

HIGH COURT CIVIL APPEAL NO. 23 OF 2015

JORAM  ADALA OKUBI.........................................................APPELLANT

VERSUS

MUSA  OUNDO MUSALAMA......................................1ST RESPONDENT

SAMUEL MULERA LUKRI............................................2ND RESPONDENT

R U L I N G

1. The  application  before me is a Notice of Motion filed on 8/8/2016 and dated the same.  It is  brought under sections 1A, 1B and 3A of the Civil Procedure  Act (cap 21), Order 42 Rules  35 of Civil Procedure  Rules  and all other enabling provisions of law.  It was filed by the 2nd  respondent – SAMUEL MULERA LUKIRI – against  the appellant – JORAM ADALA OKUBI.

2. The prayers  sought are set out here ipssisma verba (using same words):

Prayer (a)  That the Civil Appeal  instituted by the appellant dated 2nd June, 2015 be dismissed for want of prosecution.

Prayer (b)  That the  eviction orders issued in Busia Resident Land case NO. 32  of 2002  be reinstated.

Prayer (c)  That the  original land title NO. SAMIA LUCHULULO/BUKHULUNGU/1269  be  restored back as per the order of BUSIA ELC NO. 80 OF 2011.

Prayer (d)  That the costs of this application be provided for.

3. The grounds advanced in support of the application allege that the appeal herein was filed on 2/6/2015 yet  to date, over 14 months since, the appellant  has not listed the appeal for hearing or moved the court to hear and determine the same.  The appeal is now said to  be time-barred and it is further alleged that it  was filed in bad faith, principally to deny the respondent   the fruits  of the orders issued in BUSIA SRM Land case  No. 32 of 2002.

4. It appear like  the appellant responded to the application by way of grounds of opposition.  I say so because the appellant filed reply to such grounds on 8/11/2016.  That reply is dated 6/9/2016. The grounds of opposition however are not in the court file.  I will desist from highlighting or commenting on the appellant’s  reply because  l do not know which grounds he was responding to.

5. Both sides canvassed the application by way of written submissions. The 2nd Respondents submissions were filed on 3/10/2016. The appellants submissions were filed on 6/12/2016.  The 2nd  respondents submission  largely reiterates and  amplify what he stated in his application.  The appellants submissions approach the matter in a rather technical way. According  to the appellant,  no directions have been taken and no record of appeal has yet been availed.  He  submitted that under Order 42  Rule 35 under which the application  is brought, dismissal can only take place if these two things have been done.  Another aspect raised is that there is already a pending  succession case stated to be Succession Cause NO. 461 of 2014 where  the applicant herein has filed an objection.  The appellant cited two cases;- JURGEN PAUL FLACH VS JANE AKOTH FLACH: CIVIL APPEAL  NO. 119 OF 2012, NAKURU and MUMIAS SUGAR CO. LTD. VS JANEPHER ONYANGO OPIMBI:  HCA NO. 116 of 2014, KAKAMEGA. These two authorities were not availed.

6. I have considered the application and the rival submissions.  I have had a look at the memo of appeal filed on 2/6/2015. In the court file l see a record dated 17/9/2015 in which F. TUIYOT J.  has admitted the appeal and directed that it be heard by a single judge.  Another direction is that the appellant  file a record of appeal and thereafter move the court for directions.  Another  record from the court registry addressed to all the parties notifies that the appeal had been admitted, with  the appellant being told to file a record of appeal within 45 days  and thereafter take directions.

7. It is now over one and  a half years and the appellant has neither filed the  record of appeal nor taken directions. Yet  when the 2nd respondent  takes issue with that, he  is confronted  with a technical  argument to the effect that his application cannot succeed as the record of appeal has not yet been filed and directions  have not yet been taken.  A question arises:  who was supposed to file the record of appeal and/or  take directions?  The answer  to this is that it is the appellant himself who was supposed to do it.  But  in a rather twisted logic he wants to use to his advantage a state of affairs  he has caused against the respondent.

8. Another argument by the appellant is that there is a succession case  pending which impedes  the proceedings of the appeal.   This is another spurious and untenable averment.  If  there is such a case pending, why  not formerly seek stay of proceedings in this case to await the outcome of the other case?  For how long can the appeal herein be kept pending and hanging over the respondent’s  head?

9. The circumstances  show that the appellant has been grossly indolent. He  wants to  benefit from his wrongful  omissions.  The law is clear:  Nemo Commodum Capere Postest de injuria sua propria (which is  Latin  for:  No one can derive benefit from his own wrong).  It is unacceptable that he filed the appeal long ago and has left it  hanging over the respondent’s  head for the long.  The respondent  is justified to complain.

10. Before  making the final decision, l  wish to observe that the respondents application has many prayers.  These  prayers were however not urged before the court.  Both  sides focused on the prayer for dismissal of the appeal.  The decision of the court will therefore focus on that prayer only.  The other prayers, save for that  of costs, are rejected.  The other observation is that the appellants response was  rather jumbled.  Authorities were cited without being availed.  There  was no mention even in the submissions of what was being relied on in the un-availed authorities.  The appellants even went further and mentioned a succession case without availing anything to show it exists.

11. The upshot: the application is allowed in terms of prayer a) which  ask for dismissal of the appeal for want of prosecution.  Costs  of the application (prayer  (d) )are granted to 2nd respondent.  All the other prayers are not granted.

A. K. KANIARU,

JUDGE.

DATED AND DELIVERED ON …27TH……DAY OF …FEBRUARY…2017.

APPELLANT………………PRESENT……………………

1STRESPONDENT……………PRESENT………………

2NDRESPONDENT…………PRESENT

3RD RESPONDENT………  PRESENT……

COUNSEL…………………………………………

J U D G E.