JOSEPH FANUEL ALELA vs JOSEPH FANUEL ALELA [2004] KEHC 2235 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL APPEAL NO 676 OF 2002

UNEEK ELECTRICAL COMPANY LIMITED …..…… APPELLANT

VERSUS

JOSEPH FANUEL ALELA ……………………….……. RESPONDENT

RULING

This is an application under Order XVI Rule 5 of the Civil Procedure Rules (hereinafter referred to as “the Rules”) and all other enabling provisions of the law. In it, the Respondent seeks to have this appeal dismissed for want of prosecution. He also sought other orders which would follow such a dismissal but I do not see the need to consider them here as will become apparent shortly. In fact, at the hearing of the application, his Counsel did not address me on them and I take it that they were abandoned.

The matters leading to the application are fairly straight forward. The Respondent sued the Appellant in the lower court claiming damages for personal injuries sustained by himself for which he blamed the Appellant. The lower court entered Judgment in his favour. The Appellant was aggrieved by the decision of the lower court and appealed to this court, hence, the present appeal. Pending the hearing and determination of its appeal, the Appellant successfully applied to the lower court for an order for stay which was granted upon terms that it pays Kshs.200,000/= to the Respondent and deposit the balance of the decretal sum of Kshs.316,698/= into a fixed deposit account in the joint names of the Advocates for the parties. The conditions for stay were complied with.

On June 24, 2003 the Respondent filed another application seeking to have this appeal dismissed for the same reason advanced in the application before me. That application was heard by my learned Brother the Honourable Mr Justice Ransley on July 24, 2003. The Learned Judge did not dismiss the appeal but directed the Appellant to file the Record of Appeal within thirty days. If that was not done, the appeal would have been dismissed. The Appellant complied with that order and filed the Record of Appeal on August 22, 2003. No further step has been taken by the Appellant since then. This prompted the Respondent to file the instant application. The Respondent’s complaint is that the Appellant has not been active in processing the appeal.

At the hearing of the application, Mrs Ngala for the Respondent, outlined the above facts.

Mr Bw’omote, for the Appellant, on the other hand, argued, and I agree with him, that his client was not guilty of the complaint relied upon by the Respondent. It is quite obvious that the appeal has not taken off because, the lower court has not forwarded to this court its record as required by the Rules before the appeal can be admitted to hearing. This is clearly recognised in the Respondent’s Advocates’ letter dated November 24, 2003 and annexed to the affidavit of the Respondent sworn on March 20, 2004 as “JFA 2” in support of the application.

The Appellant has no power to control process of the transmission of the lower court’s file to this court which is a purely administrative function between the two courts. It would, therefore, be unfair to punish it for no fault of its own.

I, therefore, do not find any merit in the Respondent’s application dated March 20, 2004 and dismiss it with costs to the Appellant.

Dated and delivered at Nairobi this 21st day of April, 2004.

ALNASHIR VISRAM

JUDGE