Kenya Power & Lighting Company Limited v Esther Wambui Njanja (Suing as the Legal Representative of the Estate of Master Mutugi Kirimi Gichuki (deceased) [2017] KEHC 1595 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CIVIL APPEAL CASE NO. 27 OF 2015

KENYA POWER & LIGHTING

COMPANY LIMITED…………..................…APPELLANT/RESPONDENT

VERSUS

ESTHER WAMBUI NJANJA(Suing as the Legal Representative

of the Estate of Master

Mutugi Kirimi Gichuki (deceased)…..........RESPONDENT/APPLICANT

RULING

1. Judgment was entered in favour of the respondent on 1st July, 2015.  The appellant being dissatisfied proceeded to file Memorandum of Appeal on 31st July, 2015.  The appeal was admitted for hearing on 24th March, 2017 whereby the Appellant was directed to prepare the Record of Appeal and file the same within 21 days.

2. However, the Appellant failed to take any action prompting the 1st Respondent to file the current application pending before court dated 9th February, 2017 seeking to have the appeal struck out for failure of the appellant in taking steps to prepare the appeal for hearing.

3. The Appellant has not filed any response.

4. However, the respondent has quoted a wrong provision Order 42 Rule 11 of the Civil Procedure Rules which states:

“Upon filing of the appeal the appellant shall within thirty days, cause the matter to be listed before a judge for directions under Section 79B of the Act.”

Since the appeal has already been admitted, he should have filed his application under Order 42 Rule 35 of the Civil Procedure Rules which states:

“Unless within three 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 dismissal for want of prosecution.”

However, this is just a technicality which can be cured by Article 159 (2) (d) of the Constitution which states that “justice shall be administered without undue regard to technicalities.”  Also Section 1A and 1B Civil Procedure Actwhich provides for the overriding objectives of the Act and 3A, inherent jurisdiction.

In the case of Sotik Tea (K) Ltd v Duncan Momanyi Nyaribari [2016] eKLR the appeal was admitted for hearing but the appellant has not taken any steps in prosecuting the same, the court is dismissing the appeal stated:

“It is noted that the appellant did not file a replying affidavit.  This would have been helpful as it would have accorded him the opportunity of putting in annextures indicating what steps it had undertaken in ensuring that the appeal was prepared for hearing.  What is apparent from the record before this court is that after filing the appeal, the appellant went into slumber.  There is nothing to show that it undertook any of the relevant steps within the time prescribed by the rules”.

This court where and when necessary can invoke it inherent jurisdiction under Section 3A and the overriding objectives under section 1A and 1B of the Civil Procedure Act and Article 159 (2) (b) of the Constitution so as to prevent abuse of court process.

I find the appellant in the present case went into slumber and was indolent.  This is an old appeal of 2013, three years have since lapsed.  Justice delayed is justice denied.

Mohamed Adan & 2 others v Hadija Hassan Mohamed & 2 others (Suing as the legal representative of the estate of Ali Noor Ibrahim Karu (Deceased) [2014] eKLR.

In this case, the appellant had delayed for a period of only four months and the court held:

“In the circumstances of this matter, I am of the view that the short delay of a few months in prosecuting the appeal by the appellants cannot justify the dismissal of the entire appeal for want of prosecution.  Such an action will in my view, deny the appellants the benefit of substantive justice.  I will thus not allow the application.

However, it is obvious to me that the counsel for the appellants went to sleep after filing the appeal.  They are not even aware that the appeal has already been admitted by the court to hearing.  As such, though I will dismiss the application herein, I will award costs of the application to the applicants.”

5. In this case, the appellant has delayed for a period of only three and a half months since the appeal was admitted for hearing.  Though the said period is not inordinate, the appellant did not bother to file a replying affidavit and give a reasonable explanation for their delay.

6. Parties are duty bound to comply with the directions of the Court.  The appellant in this case is clearly not deserving of the exercise of the court’s discretion and the appeal herein should be struck out.  I direct that this appeal is struck out with costs.

Dated and delivered at Kerugoya this 9th day of November, 2017.

L. W. GITARI

JUDGE

Read out in open Court in the presence of Mr. Madiera holding brief for Mr. Ngigi for Appellant; Mr. Mwai holding brief for Kinyua Kiama for the applicant court assistant Martin Mbogo this 9th day of November, 2017.

L. W. GITARI

JUDGE

9. 11. 2017