Pentagon Agencies Ltd & another v Elizabeth Muute Muthoka [2020] KEHC 6861 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MURANG’A

CIVIL APPEAL NO. 54 OF 2016

PENTAGON AGENCIES LTD & ANOTHER.......................APPELLANTS

VERSUS

ELIZABETH MUUTE MUTHOKA........................................RESPONDENT

RULING

1. The respondent prays that this appeal be dismissedfor want of prosecution. The notice of motion is dated 28th June 2018.

2. The respondent avers that the appeal was lodged way back on 18th October 2016; and, that no steps have been taken to set it down for hearing. She avers that the record of appeal has never been filed. The respondent’s grouse is that that the appellants went into slumber after obtaining a stay of execution of the decree; and, that the delay is prejudicial.

3. The appellants’ counsel did not appear at the hearing of the motion. I have however seen a replying affidavit sworn by the 2nd appellant on 6th May 2019. The riposte is that the delays are attributed to factors beyond their control. There is a letter dated 27th January 2017 addressed to the lower court seeking typed proceedings. He deposes that the lower court file went missing and has not been traced to date. A further letter dated 16th November 2017 is attached.

4. On 24th February 2020, I heard further submissions from learned counsel for the respondent. Like I have stated, the appellants’ counsel did not attend despite being served on 16th January 2020.

5. I have studied the court record. It is true that the memorandum of appeal was lodged over three years ago. The appellants were granted a conditional stay of execution on 24th May 2017. The appeal has not been set down for hearing since that date.

6. The crux of the matter is whether the delay is excusable. In our adversarial system of justice, it was the primary obligation of the appellants to follow up on their appeal. At the time of hearing the present motion, the lower court file or typed proceedings were still unavailable. The appellants had raised the matter with the Executive Officer of the lower court in their letter of 16th November 2020. Granted those circumstances I cannot assign the entire blame to the appellants.

7. The test in a matter of this nature is whether justice can still be done. See Ivita v Kyumbu [1984] KLR 441. The overriding objective is to do justice to the parties. See Harit Sheth Advocate v Shamas CharaniaNairobi, Court of Appeal, Civil Appeal 68 of 2008 [2010] eKLR.

8. There is no doubt that the continued delay has prejudiced the respondent: She cannot reap the fruits of her decree. The fact that the decretal sum was deposited in court may be re-assuring but not a solution to her needs. It is not lost on me either that the decree was for general and special damages arising out of an accident.

9. The upshot is that the respondent’s notice of motion dated 18th October 2016 is disallowed.  The appellants shall however move the lower court to reconstructthe file within the next sixty days. Secondly, the appellants shall also ensure that the record of appeal is filed and served within one hundred and twenty days of today’s date. Thirdly, the appellants shall thereafter ensure that the appeal is placed before the judge in chambers for directions not more than thirty days from the date of filing and service of the record of appeal.

10. If the appellants fail to meet any of the three conditions within the set time, the appeal shall automatically stand dismissed.

11. Costs shall be in the appeal.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 16th day of April 2020.

KANYI KIMONDO

JUDGE

ORDER

In light of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 15th March 2020, this ruling has been delivered to the parties by electronic mail. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.

KANYI KIMONDO

JUDGE

Ruling read in chambers in the presence of:

Ms. Dorcas, Court Assistant.