Pyramid Construction Limited v Chuode General Construction Limited [2020] KEHC 795 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CIVIL APPEAL NO. 50 OF 2015

PYRAMID CONSTRUCTION LIMITED.......................................APPELLANT

VERSUS

CHUODE GENERAL CONSTRUCTION LIMITED.................RESPONDENT

RULING

1. The applicant filed this application under a notice of motion dated 29th June, 2018 seeking for orders that; -

a) The appeal be dismissed for want of prosecution.

b) Costs of the appeal be borne by the appellant.

2. The application is based on the grounds that the appeal was filed on 10/4/2015 and that since then no record of appeal has been prepared and served to date.

3. Further that it is more than three years since the appeal was filed and no step has been taken to process the appeal for hearing.

4. Lastly, that the delay in processing the appeal for hearing is unjustified and unjust and the respondent is prejudiced by the failure to process the appeal and have it set down for hearing.

5. The application is opposed through a replying affidavit sworn by James Nyakundi on the grounds that after the appeal was lodged, on 30/6/2015 the appellant requested to be supplied with typed proceedings.

6. That up to date, they have never received the typed proceedings and therefore it is not true that the appellant has delayed the matter.

7. Further, that by not obtaining the proceedings, the appellant is unable to file the record of appeal.

8. Dismissing the appeal would be an act of unprecedented injustice and contrary to the right of the appellant as enshrined in Articles 48, 50(1) and 159(a)(d) of the Constitution.

9. The application was canvassed by way of written submissions. The applicant/respondent submitted that the appellant filed this appeal on 10/4/2015 and that more than five years later the record of appeal has not been filed nor the appeal been processed for hearing.

10. Under order 42 rule 35, the respondent is legally permitted to seek dismissal of an appeal if it has not been set down for hearing within one year.

11. The appellant has not preferred any tenable explanation for the unreasonable delay and it should not be allowed to hold the respondent at ransom.

12. The respondent submitted that the delay was not occasioned by any fault of the appellant and as such cannot be said to be prejudicial upon the respondent.

13. The respondent relied on the case of Mwangi S. Kimenyi vs Attorney General & Another (2014) eKLR where the court stated that  “I admit that a party should always take steps to progress his case to logical conclusion. That is a requirement of justice and the overriding objective in assisting the court to attain expeditious and just disposal of cases which follows after the long-standing adage; justice delayed is justice denied. So, where the plaintiff commits acts of inordinate delay in prosecuting his case, he occasions injustice on the Defendants. But courts of law are courts of justice to all the parties. And as I stated earlier, dismissal of a case is a draconian judicial act which drives the plaintiff away from the seat of judgment. It should be done sparingly and in cases where dismissal is the feasible and just thing to do. Therefore, courts should strive to sustain suits rather than dismiss them especially where justice would still be done and fair trial held despite the delay. Any explanation for the delay which is given should be properly evaluated by the court to see whether it is reasonable. That notwithstanding, a court of law should not hesitate to dismiss a suit for want of prosecution where it strongly feels the sustenance of the suit will only breed extreme prejudice to the Defendant. But in ascertaining prejudice to the Defendant it must also weigh the prejudice the dismissal will cause to the Plaintiff. The balance thereof need not be symmetrical, but the impulsion should come from the dictates of justice and where need be, the suit should be sustained.”

14. That owing to the prevailing circumstances of this matter, by allowing the present application, the court will be propelling great prejudice upon the appellant/respondent.

15. Lastly, that in light of the overriding objectives towards meeting the ends of justice, the courts should ensure that matters are not thrown out on technical grounds.

16. The issue which arises for determination is whether the appellant has made out a case warranting dismissal of appeal for want of prosecution.  From the record, the memorandum of appeal was filed on 10th April, 2015.

17. From the record also, the appeal has not been admitted as provided under Section 79B of the Civil Procedure Act.

18. As regards to dismissal of an appeal for want of prosecution, Order 42 rule 35 (1) and (2) provides that:

(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 to either set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.

(2) If within one year after 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. The rules are clear as to when an application for dismissal for want of prosecution can be made. In the present application, the respondent should have requested the Registrar to list the matter for dismissal.

20. These provisions ensure that where delay may be by the appellant, the registrar can place the appeal before the Judge for dismissal.

21. In the case of Elem Investment Ltd. -Vs- John Mokora Olwoma (2015) eKLRAburili J stated:

“a reading of the above provision shows that it is clear that an appeal can be dismissed for want of prosecution in two instances.  Firstly where there has been a failure to admit the appeal for hearing three months after directions have been given under Order 42 rule 13 Civil Procedure rules or secondly if after one year of service of memorandum of appeal the appeal has not been listed for hearing.

In these two scenarios, the procedure is different.  In the first scenario, the respondent is given the option to either list the appeal for hearing or apply for its dismissal.  Under that scenario however, the appeal can only be dismissed if it has been admitted and directions have been given”.

22.  Order 42 rule 35 (1) Civil Procedure Rules provides that a party can only apply for dismissal where directions have been given.In this case, directions have not been given.

23. To overcome delay and prejudice, the applicant can request the registrar to place the appeal before the Judge for dismissal.

24. Since no directions have been issued in the present appeal the applicant (respondent) cannot move the court to dismiss the appeal for want of prosecution.

25. In the case of Kirinyaga Machinery -V- Hezekiel Mureithi Ireri H.C.C.C. No. 98/2008 it was held:

“It is clearly seen from that rule that before the respondent can move the Court either to set the appeal down for hearing or to apply for dismissal for want of prosecution, directions ought to have been given as provided under rule 8B.  The directions having not been given, the orders sought by the respondent cannot be entertained.”

26. The applicant cannot apply for dismissal by herself where directions have not been given. He ought to have written to the Registrar to request that the appeal be placed before the Judge for dismissal.

27. The application therefore lacks merit; the same is dismissed with costs to the Respondent.

S. M GITHINJI

JUDGE

DATED, SIGNED and DELIVERED at ELDORET this 9th day of December, 2020.

In the absence of:-

Mr. Nyakundi for the Applicant

Mr. Momanyi for the Respondent

Gladys - Court Assistant