Mutwiwa & another v Martin [2025] KEHC 154 (KLR)

Mutwiwa & another v Martin (Civil Appeal E044 of 2022) [2025] KEHC 154 (KLR) (14 January 2025) (Ruling)

Neutral citation: [2025] KEHC 154 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal E044 of 2022

TM Matheka, J

January 14, 2025

Between

Wilson Ndolo Mutwiwa

1st Appellant

Robert Manetu Musingi

2nd Appellant

and

Jane Ndinda Martin

Respondent

Ruling

1. What is before me is the Notice of Motion application dated February 13, 2024.

2. It is brought under Order 17 rule 2(1) and order 51 rule (1) of the Civil Procedure Rules 2010 and Sections 1A ,1B and 3A of The Civil Procedure Act Cap 21 of the Laws of Kenya.

3. The applicant seeks that the appeal herein be dismissed for want of prosecution on the grounds that the appellants/ respondents have failed to take any steps to prosecute their appeal for a period of over one year yet the respondent /applicant continues to suffer unnecessary anxiety due to this delay in the prosecution of the appeal, and delay in the enjoyment of the fruits of her judgment.

4. The application is supported by the affidavit of the applicant sworn on 13th February 2024. The applicant reiterates the grounds on the face of the application in her affidavit.

5. The application is opposed through the replying affidavit sworn by Mercy Waweru Counsel for the appellants.

6. It is the position of the appellants that the application is misconceived and premised on a misapprehension of law and facts and they seek that the same be dismissed with costs to themselves. It is deponed that the appeal was filed through a memorandum of appeal dated 19 August 2022. That the appellant sought a stay of execution of the judgment and conditional orders were granted. It is deponed that the appellants have duly complied with the said conditions and that the appellants have all their intentions to pursue the appeal but have delayed to do so because they have been following up on the typed proceedings. To that end they have annexed the letter to the subordinate court seeking to be supplied with typed proceedings and certified copy of the judgment.

7. It is the appellant’s position that an application under Order 42 rule 35 could only have been brought if directions had already been given for the hearing of the appeal. The appellants cite section 79B of the Civil Procedure Act.

8. It is further deponed that the appeal is yet to be admitted in accordance with section 79B of the Civil Procedure Act and that until that admission of the appeal no step can be undertaken by the appellant; that the lower court record has not been availed to the High Court to enable the court to determine whether to admit their appeal; that this court has unfettered discretion under sections 1A and 3A of the Civil Procedure Act to ensure not only just and expeditious disposal of the matter but also has the inherent power to make such orders as may be necessary for the ends of justice .

9. The applicant filed a further affidavit deponing that the judgment in the lower court was delivered on the 19th of July 2022 by the Hon J O Magori. Further that the memorandum of appeal was filed on the 19th of August 2022 and since then the appellants had not taken any step to set down their appeal for hearing. That two years have since lapsed and in any event the appellant had only requested for typed proceedings through their letter dated 5th April 2024 after this application was filed.

10. It is further deponed that section 79B of the Civil Procedure Act provides for the summary rejection of an appeal by the judge on his own motion which is distinct from the application in the instant case as the same is seeking to have the appeal dismissed for want of prosecution and not for summary rejection of the appeal. Further that the purport of Order 42 rule 35 (2) is that if within one year after the service of the memorandum of appeal the appeal is not set down for hearing the same can be listed for dismissal.

11. It is further deponed that the applicant is highly prejudiced by the fact that the appeal has been pending for over two years and the same should be dismissed for want of prosecution.

12. Parties agreed to file written submissions. At the time of writing this ruling only the applicant’s submissions by the firm of Karanja &Partners, dated 12th August 2024 were on the CTS server.

13. Counsel for the applicant set out the brief facts of the case and framed one issue for determination which is whether the appeal should be dismissed for want of prosecution.

14. In support of the arguments the applicant relied on several authorities: Khavengeha vs Transline Classic Civil Appeal E065 of 2022{2024} eKLR where the court stated that an appellant cannot and will not be allowed to file an appeal and keep it pending for years on end and hide behind the fact that directions have not been taken; Similarly, China Road and Bridge Corporation versus John Kimenye Mutetti {2019] eKLR where the court was of the same view adding that nothing bars the court from dismissing an appeal where no directions have been given; and in Abraham Mukhola Asista vs Silver Style Investment Company Limited [2020]eKLR where the court held the view that parties who file appeals and park them at the registry without moving the court one way or the other create unnecessary backlog and therefore courts should dismiss them as there is no reason for them to clog the system .The court was certain that there is an inherent power to dismiss such appeals; in Charity Wangechi Rukwaro vs Josephat M Thiongo [2018]eKLR the court stated that “A question that may arise is this ;what if the appeal has not been admitted and directions given within one year of the service of Memorandum of Appeal, would the court still dismiss it ? In my humble view the court is perfectly in order to dismiss their appeal because the burden is always on the appellant to set in motion the necessary steps to have the appeal admitted and directions given in preparation for the hearing of the appeal. The assumption is that a year is time enough to have such steps taken “. The appellant further submitted that in Mwangi S Kimenyi versus Attorney General and another Misc Civil suit no 720 of 2009 the court set out the principles governing dismissal of suits for want of prosecution

15. The applicant submits that the appellants did not take any steps to prepare for the taking of directions until after they were served with this application and that sets this appeal up for dismissal.

16. Having considered the submissions, the affidavits, the only issues for determination are;a.whether this appeal ought to be dismissed for want of prosecutionb.who is to bear costs

17. The application was brought under Order 17, rule 2 (1) but for clarity I cite the whole order 17 rule (2) herein below.(1)In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.(2)If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.(3)Any party to the suit may apply for its dismissal as provided in sub-rule 1. (4)The court may dismiss the suit for non-compliance with any direction given under this Order.(5)A suit stands dismissed after two years where no step has been undertaken.(6)A party may apply to court after dismissal of a suit under this Order.

18. The appellants rely on Order 42 rule 35. Dismissal for want of prosecution which states;(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.

19. It is the argument of the respondent /appellants that the provisions of order 42 rule 35 and section 79B cannot be complied with unless and until the appellant obtains typed and certified copies of the proceedings, judgment and or decree.

20. In this case it is not in dispute that the appeal was filed on 19th August 2022. The appellants obtained stay of execution orders and thereafter there is no evidence of any action on their part. They have annexed a letter dated 5th April 2024 addressed to the Deputy Registrar High Court not the subordinate court, seeking for the proceedings and judgment of the subordinate court. There is nothing on the letter to show that it was received by the court that is expected to supply the proceedings. Hence it true that since filing and serving the memorandum of appeal the appellants did no more to move the court to ensure that the appeal was on its way to its disposition. The appellants obtained stay of execution of the lower court pending the hearing and the determination of their appeal However instead of pursuing the appeal the appellants sat on their laurels and did nothing for close to two years. They cannot now turn around and say that they are willing to pursue the appeal and will be prejudiced if the appeal is dismissed.

21. The argument that until the appeal is admitted, until directions are given, until the appellant has the proceedings etc. the appeal cannot be dismissed is untenable. It means that an appellant can file an appeal for the sake of filing the appeal and keeping the respondent in anxiety. I am in agreement with the authorities cited by the applicant to the effect that the court has the inherent power to dismiss such an appeal, and the appellant does not deserve the discretion of the court to grant any other orders.

22. The appellants have not demonstrated any difficulty in obtaining the proceedings, judgment or decree from the lower court all this time. That brings their appeal within the purview of the authorities whose point is that an appellant who files an appeal and does not prosecute it can only blame themselves when that appeal is dismissed. In this case it would appear that the purpose of filing their appeal was to get a stay of execution order. The appellants had the duty to move the court appropriately or in other words to take the appropriate steps to ensure the compliance with order 42 rule 35.

23. In the circumstances, I find that the application has merit and allow it.

24. The appeal is dismissed with costs to the applicant/respondent.

25. Orders accordingly

DATED, SIGNED AND DELIVERED VIA CTS THIS 14THJANUARY 2025MUMBUA T MATHEKAJUDGEMs Nelima, Ms Elizabeth: Court AssistantsFor the applicant: Karanja & Partners AdvocatesFor the Respondents: Kimondo Gachoka & Co Advocates