Kenya Nut Company Limited v Samson Ogutu Rachar [2015] KEHC 1338 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  828   OF 2007

KENYA NUT COMPANY LIMITED ………...........……….APPELLANT

VERSUS

SAMSON OGUTU RACHAR …………………............ RESPONDENT

RULING

Vide an application dated 7th May 2014, the respondent in this appeal Samson  Ogutu Rachar seeks two prayers  in his  notice of motion:

a. Dismissal of this appeal for  want of prosecution

b. That  the orders of stay of execution of decree in Kandara  RM CC 28/2007 be vacated .

The application is premised on the  grounds that the appeal has  been pending in court for  too long and that  it was last in court  on 16th April 2009 and that  only the respondent  had taken  steps to have the appeal  heard in one way or the  other.

Further, that the delay by the appellant to take steps in the matter  is inordinate, unreasonable  and inexcusable  in the circumstances.  Finally, that it  is in the interest  of justice  that this  matter be  brought to an end.

The said application is  further  supported by the affidavit of Gachoka  Mwangi advocate sworn on 7th May 2014  wherein he deposes  that since  the appeal was  filed in October  2002, the record  of appeal  was filed on 16th April 2009 and thereafter  no steps  were taken  by the appellant   thereby prompting  the respondent to file an application on 11th June  2012  seeking to have the  Memorandum of Appeal dismissed for want of prosecution.

It is further deposed that the appellant  did shift  blame on  the court by annexing several letters  written to  the court but  not copied  to the respondent’s counsel and that  the said application was compromised  on conditions that the  appellant  pays costs  of the application to the respondent  and files certified  copy of decree  from the lower  court within 45 days  and the matter stood  over to 8th November  2013 for  further directions and confirmation of  compliance of the said court  orders.

That the appellant  never  complied  with the said orders  and since 29th January 2014  no action   was taken  and a proposal to pay 20,000/- as costs  of that application has never  been responded to, forcing the respondent’s  counsel  to file  his bill of costs dated  21st May 2012.  He urged  the court to  dismiss  the appeal or invoke  order  40 Rule  6  of the Civil Procedure  Rules and vacate  the orders of  stay of execution.

The application was opposed, with the  appellant Kenya Nut Company  Ltd  filing replying affidavit  sworn by  their counsel Ms Sylvia Matasi on  23rd June 2015 contending  that they  have taken  necessary  steps to  have the  appeal heard  but the  lower court file  was not available  and on 8th November 2013  Honourable Onyancha  J  did order for the lower court file to be availed  to enable  parties list the matter  for directions but that  since then, they had made  concerted  efforts to have  the executive officer Kandara Law  Courts  forward the  file to  the High Court to no avail.  They annexed   several copies  of letters  addressed to that court.

Ms Matasi deposed that  she had severally gone to  the said Kandara court  and on each occasion she was informed that  the file would be forwarded as  soon as possible but nothing  had been forthcoming.  She  maintained  that the delay is having the  appeal prosecuted was not occasioned by them or  the appellants but by the  Kandara  Court, which  the appellant  had no control  over and therefore  that fault  should not  be visited  on the  appellant.

Further, that their client  is  interested  in prosecuting the appeal once  the file from  the lower  court was availed.  Ms Matasi contended that this  application was also filed  before the lapse  of one year hence it  was frivolous  and therefore  the same should be dismissed with costs  to the appellant.

The parties’  respective advocates  argued  the application  orally  on 23rd June 2015  and reiterated the contents  of the  rival positions  as per the  application, supporting affidavit  and replying  affidavit.

Mr Gachoka counsel for the respondent/applicant maintained that the  appellant had to be pushed to  take action and that  this was the  second time an  application to  dismiss the appeal for  want  of prosecution was made and  similar  reasons for inaction by  the appellant given to the effect  that  the delay was occasioned  by the  court.

Counsel for the respondent challenged  the appellant’s  honestly  in this matter  having failed  to comply with the previous court  orders   to pay costs of the earlier  application to the respondent  and for  failing  to file decree. He contended that the conduct of  the applicant  is that of  a disinterested  litigant  in the determination of the  appeal as  none of the  letters to  the court are  copied to the respondent’s counsel.

Mr Gachoka maintained that  the appellant  was guilty of inordinate  delay  and urged that  should the court be inclined  to sustain the appeal, it should vacate the  stay orders and condemn the appellant to pay costs  as earlier  ordered and the  costs of this application.

Mr Gachoka also contended that  the conduct  of the appellant   disentitles  them the discretion of this court  and urged the court to grant the prayers sought in the application.

In response, Ms Matasi contended that no directions have been  given to  warrant  dismissal of the appeal under Order  42 Rule  35 of  the Civil Procedure Rules  and that  since  8th November 2013 when this court ordered  the lower court file to be availed  to Kandara court to  facilitate preparation of  decree, the  respondent’s  counsel was in court and  since  then the appellant’s counsel had written to the said  court severally but with no response.

Further, it was submitted that he appellant had  no  control over the lower court  but did  receive decree and certificate of costs on  27th January 2014  and are  ready to prosecute the appeal if the lower court  file is availed.

Further, that stay of execution  of  decree was granted  to safeguard  the interests  of the appellant.

In a brief rejoinder, Mr Gachoka  submitted that if he had  not filed  this application, the  appellants  would not  have known that the lower court  file is now availed  and urged the court to give  stringent conditions should  it  disallow  the application.

I have carefully considered the respondent’s  application, the grounds and supporting affidavit .  I have given equal consideration to the reply by the appellant, its annextures and the rival submissions of the parties’ advocates on record.

The issues for  consideration is whether  the appeal herein  should be  dismissed  for want of  prosecution and if not, whether  the stay  granted pending  appeal herein should be  vacated  and if not, what orders  should  this court make.

The law governing dismissal of appeals  for want of prosecution is contained  in Order 42 Rule 35  of the Civil Procedure  Rules.  Under  Order 42 Rule 35(1), unless within 3 months  after the  giving of  directions  under Rule 13   the appeal  shall have  been set down for hearing  by the appellant, the respondent  shall  be at liberty either  to set down the appeal  for hearing  or to apply by  summons for  its dismissed  for want of  prosecution.

If, within one year  after the service e  of the Memorandum of Appeal, the  appeal shall not have  been set down for  hearing, the registrar shall  on notice  to the parties  list the  appeal  before a judge in chamber for dismissal.  A reading of the above provisions reveals that an appeal can dismissed for want of prosecution in two instances.

First, is where there has been failure  by the appellant  to list the appeal  for hearing three months  after directions  under Order  42 Rule  13 of the Civil Procedure Rule  have been give, or second, if after  one year  of service  of the Memorandum of Appeal the appeal is not listed for  hearing.

In the instant case, the first  scenario  is the  one contemplated  by this  application  by the respondent.

Nonetheless, the record  is clear that  no directions  have been  given under  Order 42  Rule 13 of the Civil Procedure  Rule, although  the appeal was admitted  to hearing on 8th November 2013.  The applicant has also invoked the inherent  jurisdiction of the court under Section 3A of the Civil Procedure Act and   all other enabling provisions of the law.

Albeit  the cited relevant  provision of  the rules require  that  for an appeal to be dismissed  under Order 42 Rule  35(1) of the Civil Procedure Rules, directions must  have been given,   Judicial precedent  seem to favour that  position ( see Suresh Ruginath  Ramga &  Another  V Sagar Mohan S.M Ram  CA 433/2012 where the court held:

“ The appellants counsel submitted that until  and unless directions  are issued, an appeal cannot be  dismissed for  want of  prosecution; and that the procedure of dealing  with an appeal where  directions have  not been issued is  that contemplated in Order  42 Rule 35 (2) and not Order  42  Rule 35(1).  I am in agreement  with these submissions.  In Kirinyaga General Machinery V Hezekiel Mureithi Ireri HCC 48 of 2008 while interpreting  Order XL1 Rule 31  now Order  42 Rule  35, Kasango J, observed:  “ It is clearly  seen form the rue that before  the respondent  can move  the court either  to set the appeal down  for hearing   or to apply for dismissal  for want  of prosecution , directions ought to  have been given  as provided  for under Rule 8B.  Directions  have never  been given  in this matter.  The  directions  not having been  given the  orders sought by the respondent  cannot be  entertained.”

From the record  in the instant  appeal filed  on 3rd October  2007 under certificate  of delay  dated 11th  February  2009, no directions  have been given  under  the old Order 8B or  the new order 42 Rule  13 of the Civil Procedure Rules.

In addition, the lower court  record has  kept being  shuttled between  this court  and Kandara Law Court.  It was first forwarded to this court on 28th April 2009 but without a decree.  The same had to be returned to Kandara Court for extraction of decree to be included in the record of appeal.  It was then archived there and it has taken ages to return to this court on 19th June 2015 after this application to dismiss suit was filed.

The new  2010 Civil Procedure Rules nonetheless impose a legal  obligation on the appellant to be  proactive  to take all necessary  steps  to prepare  the appeal  for hearing, including  ensuring  that the  file is placed  before a judge  for directions.  The appellant has exhibited  copies of letters  dated 10th June 2014, to the Deputy Registrar  High of this court  asking  for a date  for  directions as the file was not listed on 29th January 2014  and seeking  a confirmation whether the lower court  file was transferred  to the High Court; a letter dated 13th November 2014  to the Executive Officer  Kandara  Law  Courts seeking  for transmission of  the lower court file to the High Court to facilitate  hearing and  enclosing  letter written by the Deputy Registrar  to Kandara Law  Courts  dated 22nd October 2014  calling for  the  file; a letter of reminder  dated 30th March 2015  referring  to the Deputy Registrar’s  letter  above and counsel’s several visits  to that court; another letter dated  11th May 2015  all from the appellant’s  counsel  to that court, which letters have evinced no response or at all.

The record shows that the respondent had initially sought dismissal of the appeal for the same reasons but the application was compromised on terms.

On 19th June 2015, the lower court file was received in the High Court vide forwarding letter dated 26th May 2015.  The said forwarding letter was never copied to any of the parties advocates to prompt them take action.

I have perused the  said lower  court file CC 28/2007 and among  correspondence are a letter by the Deputy Registrar  of this court to that court  dated 3rd March 2015  calling for  the said  file, and referring  to the  letter of  4th October 2007.  There is also a letter dated 11th May 2015 received on 14th May 2015 written to the Executive Officer of Kandara Law Courts by the appellant’s counsel complaining of failure to remit the file to the High Court.  Another letter is dated 17th December 2013 received on 8th January 2014 asking for copy of decree and certificate of costs which they duly paid for.  Another communication by the Deputy Registrar dated 22nd  October 2013 returning   the file to Kandara   Court to facilitate extraction of decree.  Regrettably, the decree was only extracted on 27th January 2014 and file resubmitted to this court over one year later.

This court cannot imagine the kind of frustrations parties go through trying to have their cases heard, where there is inertia on the part of the judicial staff to respond to the need for expediency.

Indeed, public policy demands that cases be heard and determined expeditiously since delay defeats equity, and denies the parties legitimate expectations that their disputes would be resolved expeditiously.

In addition, the Constitution Article 159(2) (b thereof commands courts to administer justice without undue delay.

The respondent herein squarely blames the appellant for inertia and for the delay in prosecuting this appeal.  I am of a different view, from my perusal of both the High court and lower court record.  The delay has been substantially contributed to by the court’s inability to act on the many requests and pleas by the appellant’s counsel, which is a very unfortunate scenario.  I agree  that where  an appellant  files an appeal and goes to  slumber  especially after obtaining  a  stay of execution pending appeal, this court  can invoke  its inherent  jurisdiction under Section 3A  and the  overriding  objectives  of the Act  (Civil Procedure Act) under Sections  63(e) thereof  and Article 159(2) (b)of the  Constitution, which provisions enjoin this court to do all that  it can to prevent  abuse of its processes, to expedite the delivery of justice  for the parties in a just, fair, proportionate  and at a cost that  is affordable  to all, and finally  ensure  that justice shall be administered without  undue  delay; and  the court may dismiss  the appeal.

Nonetheless, all parties and their advocates are enjoined by the overriding objectives of the law to assist the courts to achieve the overriding objectives of the Civil Procedure Act as espoused in Sections 1A and1B of the Act.  This   court is enjoined to exercise its discretion, where it is so prescribed, in order to salvage justice from defeat and to make such orders as appeal to the court to be just and convenient.

I quite agree with submission of learned counsel for the respondent that indeed there has been delay in prosecuting this appeal.  However , I am persuaded  that the appellant  has been failed by our courts and especially the Kandara Law Courts; and I am further  persuaded that the appellant  had done  all it  could through its advocates  on record  to have  the lower court record availed to this court to facilitate  prosecution of the appeal herein  to no avail.  The appellant have indeed, and in the full view of this court, acquitted themselves of blame and demonstrated that it is has been a helpless party who deserves the unfettered discretion of this court to be exercised in its favour.

It therefore  follows that this court cannot do any more  injustice to the appellant by dismissing the appeal herein  for want of prosecution  or even  vacate  the orders of stay pending  appeal  as to do that would  expressly occasion  an injustice  to the  appellant.  Courts  of law ought  not  to do injustice to the parties who  knock  on the  doors of justice  and thereby oust the parties from  the judgment  seat for no fault of  their own.

This court nonetheless commends the respondent for being vigilant in pushing for dismissal of the appeal, which has led to the unveiling of the many ailments bedeviling our judicial and justice system.  Even  when there is a challenge and  indeed  there are  a myriad  of challenges  in the judicial system in the administration of justice which are being  addressed. However, a response to the parties’ queries  with relevant information is critical.  In this case, the courts  put the  appellant in a dire situation, not  that the  appellant was indolent. There is need for an enforceable service delivery charter just to remind those in administration that they exist to facilitate the just, fair and expeditious delivery of justice. They lubricate the wheels of justice and if they lax, then justice will suffer delay and denial.

In addition, in my view, the  prejudice that the appellant  is likely to suffer if  the  appeal herein   is dismissed  is likely to  be graver than the  prejudice that the applicant/respondent would suffer if the  appeal is ordered to proceed, given that the decretal sum is secured and the lower court  file is now available.  I am enjoined by the decision in the Court of Appeal Abdurahman Abdi V Safi Petroleum Products Ltd &  6 Others  (2011) e KLR  CAPP Nairobi 173/2010wherein  the Court of Appeal stated thus:

“ The court has to weigh the prejudice that  is likely to be  suffered by the innocent  party  and weigh it against  the prejudice  to be suffered  by the offending  party if  the court strikes out its  document.  The court in that regard  exercises judicial discretion”.

I have also previously in Allan Otieno  Osula V Gurder Engineering  & Construction Ltd (2015) e KLRpronounced myself in similar  circumstances thus:

“………..I employ the principle that  the right of appeal is a constitutional right  and in as much  as there has been delay  which has  not been satisfactorily explained  by the appellant, this court  has to weigh the cost and  prejudice  that is  likely  to be occasioned  to the appellant as well as  the respondent, if the  appeal is  struck out at  this stage without  according the appellant an opportunity to be heard on the merits  of the appeal”.

I adopt the above positions and add that in the circumstances   of this case, the court will be driving the appellant  away from accessing  justice  if the appeal herein was to be  dismissed   and stay as granted lifted.  The appellant   has demonstrated  that it has never lost interest  in prosecuting the appeal herein.  This is clearly  evident from the record  and their concerted efforts to get the lower court file  availed to this court for directions under Order 42 Rule 13  to be given.

Furthermore, the matter  had even  been listed  for directions on 16th September 2013 and 8th November 2013 when it  was moved to 29th January 2014  even without the lower court file being availed but the matter was adjourned  for want of the said file.

Albeit  the respondent’s counsel  laments  that the costs awarded for the initial  application  on 16th September  2013  by Waweru J  which was  compromised have not been  settled, I have not seen any taxed costs  which the  appellant  has refused  to settle  since the  order for  costs did not  quantify the  same.  Where costs  are not quantified or agreed upon, then the party in whose favour  the costs are made  is entitled to  have the costs assessed and if not settled, execute for recovery.

For the foregoing reasons, I decline  to grant  the orders sought in the application and dismiss it.  As the delay  is not attributed  to the appellant and the respondent  was only undertaking  a legal duty in this matter, to  ensure  expedition, I order that  each party  bears their  own costs  of the application.

To ensure  that there is no further delay in prosecuting  this appeal, now that the lower court  record is available, I order that directions shall be given  on 19th October 2015.  Upon which a hearing date shall be directed.

As sated, each party shall bear their own costs of the application herein.

Dated and signed and delivered  in open court  at Nairobi this 29th day of September  2015 .

R.E. ABURILI

JUDGE

29. 9.2015

Coram R.E. Aburili J

C.A. Adline

Miss Matasi for  appellant  /respondent

Miss Mutua  for Gachoka Mwangi for respondent

Court – Ruling  read and delivered  in open court as scheduled .

R.E. ABURILI

JUDGE

29. 9.2015

COURT –Directions on 19th October 2015  by consent.  Ruling to be typed.

R.E. ABURILI

JUDGE

29. 9.2015