Moses K. Burer v William Serem [2016] KEHC 6894 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL APPEAL NO 89 OF 2010

MOSES K. BURER............................................................APPELLANT

VERSUS

WILLIAM SEREM..........................................................RESPONDENT

RULING

1. The respondent prays that this appeal be dismissed. The respondent contends that the appellant is disinterested in prosecuting the appeal. He avers that the lethargy is prejudicial; and, he cannot reap the fruits of his decree granted by the lower court.

2. The appellant states that the appeal was fixed for hearing on 7th October 2014. The parties agreed; and, the court directed that the appeal be determined by written submissions. The submissions were to be filed and exchanged by 9th December 2014. By June 2015, the appellant had not complied. The respondent then filed the motion for dismissal. Those matters are buttressed in the notice of motion dated 11th June 2015.

3. The appellant opposes the application.  There is a replying affidavit sworn by the appellant on 20th January 2016. He deposes that the submissions could not be filed because the court file went missing; and, his lawyer failed to diarize the matter. He pleads with the court not to visit upon him the sins of his counsel. He also avers that he has since filed and served the submissions. He states that he is keen on prosecuting the appeal; and, that no prejudice will be suffered by the respondent if the appeal is heard on its merits.

4. On 20th January 2016, learned counsel for the appellant and respondent made brief oral submissions. I have considered the rival arguments. I have also paid heed to the records before me, the pleadings, and depositions.

5. The memorandum of appeal was lodged on 26th May 2010. That is more than five years ago. The record of appeal was filed on 15th October 2012, more than three years ago. I have seen the standard form affixed on page 1 of the court record. The appeal was admitted by Azangalala J (as he then was) on 6th October 2011. That is well over four years.

6. There is thus no contest that there has been delay in prosecuting the appeal. When the appeal was listed for hearing on 7th October 2014, the parties agreed to proceed by written submissions. The appellant defaulted. The appellant was only woken up from his slumber by the filing of this motion for dismissal on 10th June 2015. That was nearly a year from the date of the last directions. A replying affidavit to the motion for dismissal was not filed until 20th January 2016, the same day I heard this motion for dismissal.

7. There is no tangible evidence that the court file went missing. It is a bare statement. Even if the appellant is to be believed, he took no steps to move the court by correspondence or an appropriate motion for reconstruction of the court file. It is clearly a red herring. The bitter truth is that the appellant went to sleep. It must never be forgotten that in our adversarial system of justice, it remained the primary obligation of the appellant to follow up on his appeal. See Anne Chege & another v Peter Musasya, Nairobi, High Court Civil Appeal 840 of 2003 [2006] eKLR, Daniel Okoko v Dan Owiti, Nairobi, High Court Civil Appeal 452 of 2003 [2006] eKLR.

8. However, the present motion is founded on the wrong procedure. It is predicated upon Order 17 rules 2 and 4 of the Civil Procedure Rules 2010. That order deals with dismissal of ordinary suits for want of prosecution. The correct Order and Rule relating to dismissal of appeals is Order 42 rule 35. The suit that was dismissed in the lower court related to property. The appellant was aggrieved and brought this appeal. True, there has been laches; but the test in a matter of this nature is whether justice can still be done. See Ivita v Kyumbu [1984] KLR 441. I note that the appellant filed written submissions on the main appeal on 28th October 2015.

9. There is an overriding objective to do justice to the parties. In the interests of justice this appeal may be heard on merits. However, justice is a two way street. I dealt at length with the lackluster conduct of the appellant. The respondent is prejudiced by the existence of a stagnant appeal.  The respondent cannot realize the fruits of the decree in the lower court. I am thus prepared to grant the respondent costs. That will perhaps assuage the respondent; and, keep the appellant wide awake.

10. The upshot is that the respondent’s notice of motion dated 11th June 2015 is dismissed.  The appellant shall however pay the respondent thrown away costs of Kshs 10,000 within the next thirty days. The appellant shall also ensure that the appeal is set down for hearing within sixty days of today’s date. If the appellant fails to meet any of the conditions within the set time, the appeal shall automatically stand dismissed.

It is so ordered.

DATED, SIGNED and DELIVERED at ELDORETthis 16th day of February 2016.

GEORGE KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:

No appearance for the respondent/applicant.

Mr. Kiboi for the appellant instructed by Kiboi Tuwai & Company Advocates.

Mr. J. Kemboi, Court clerk.