Mugweru v Mukiri & another [2022] KEHC 10294 (KLR)

Mugweru v Mukiri & another (Civil Appeal E086 of 2021) [2022] KEHC 10294 (KLR) (Civ) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10294 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E086 of 2021

DO Chepkwony, J

June 2, 2022

Between

Derah Nyokabi Mugweru

Applicant

and

Josey Njoki Mukiri

1st Respondent

Valley Auctioneers

2nd Respondent

Ruling

1. On 24th May, 2022, when the matter came for mention for the Appellant to confirm whether she had filed a Record of Appeal as directed by the court on 22nd February, 2021, the Respondent herein, vide an oral Application, sought to have the Appeal herein dismissed for want of prosecution. On 22nd February, 2022, the Appellant had been directed to file the Record of Appeal within 60 days from the date thereon which direction had never been complied with.

2. According to the Respondent, the Appellant has not followed up on the proceedings as it is his obligation to do so. He also pointed out that this matter has been pending for over six months and its pendency continues to deny him the fruits of his Judgment. The Respondent prays that the Appeal be dismissed for want of prosecution.

3. On the other hand, the Appellant argues that she has filed the Appeal and what is remaining is the record. The Appellant goes on to state that the certified proceedings have never been ready and the failure on the part of the registry cannot be visited upon him. He has argued that the Respondent’s assertions are an abuse of the process of court and that what he is seeking draconian orders.

4. I have considered the arguments by both parties with regard to the application by the Respondent to have the appeal dismissed for want of prosecution. I have also perused the Memorandum of Appeal on record filed and dated 8th September, 2021. I can confirm that what is yet to be filed is the record of appeal.

5. Appeals to the High Court are governed by Order 42 of the Civil Procedure Rules. The said Order 42 rule 35 provides as follows in regard to dismissal of Appeals for want of prosecution:-“35(1)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.(2)If, within one year after the service 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 chambers for dismissal.”

6. In the case at hand, the appeal has not been given directions as required under the provisions of Order 42 Rule 11 & 12. The appeal is yet to be admitted.

7. The lower court proceedings are yet to be availed to the Appellant. There are however no copies of letters from the Appellant exhibited herein to demonstrate that it requested for the lower court file save for the oral submissions made to that effect. The Appellant also has the responsibility of compiling the record of appeal and taking steps to prosecute his appeal. Be that as it may, the Appellant is not entirely to blame for the delay. The court must bear part of the blame.

8. The Appeal herein has is yet to be admitted as no directions have been given under rule 13 as stated above. Proceedings are yet to be availed to the Appellant. As such, the Appeal herein is not ripe for dismissal.

9. The Respondent’s oral application to dismiss theinstant appeal for want of prosecution is premature and unmerited. The same is hereby dismissed with costs in the cause.

10. The Appellant is directed to ensure his Appeal is prosecuted expeditiously. The Deputy Registrar in charge is also directed to assist the Appellant in ensuring the certified proceedings are ready and availed to court.

It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF …JUNE, 2022. D. O. CHEPKWONYJUDGEIn the presence of;Mr. Oloo counsel for the ApplicantMr. Kihiko counsel for RespondentCourt Assistant - Kimoine