Scania Credit Solution (Proprietary Ltd) & another v Mburu & another (Suing as the administrators of the Estate of Robert Ndungu Mburu) [2023] KEHC 23584 (KLR)

Scania Credit Solution (Proprietary Ltd) & another v Mburu & another (Suing as the administrators of the Estate of Robert Ndungu Mburu) (Civil Appeal E189 of 2022) [2023] KEHC 23584 (KLR) (4 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23584 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E189 of 2022

DO Chepkwony, J

October 4, 2023

Between

Scania Credit Solution (Proprietary Ltd)

1st Appellant

John Waithaka Thuo

2nd Appellant

and

Solomon Njoroge Mburu

1st Respondent

Lucy Njambi Mburu

2nd Respondent

Suing as the administrators of the Estate of Robert Ndungu Mburu

Ruling

1. What is before the court for determination is the Notice of Motion Application dated September 6, 2023 seeking the following orders:a.That the Honourable Court be pleased to strike out Memorandum of Appeal filed herein.b.That the Appellants be ordered to pay the costs of the Appeal.

2. The Application is based on the grounds set out in the Affidavit of Solomon Njoroge Mburu sworn on 6th September, 2022 as follows that:-a.the Memorandum of Appeal was filed on 17th August, 2022 and served upon the Respondent herein on 5th September, 2022. b.an inordinate period of over one year has lapsed after the filing and service of Memorandum of Appeal.c.the Appellants have not bothered to take any practical step to make the Appeal progress or towards its expeditious disposal.d.the Honourable Court be directed the Appellant on 14th March, 2023 to file the Record of Appeal within 45 days but to date the Appellants have defied to comply with the said directions.e.the Appellants have not shown or demonstrated any interest in prosecuting this Appeal.f.the Appellant’s conduct has highly eroded the Honourable Court’s spirit of just, expeditious and timely disposal of matters.

3. The Application was served upon the Respondent and an Affidavit of Service duly filed in court on 12th September, 2023. To date, the Respondent has not filed any document in response to the said application. Be that as it may, the court is called upon to consider the merits of the application.

4. The Appeal was filed on 22nd August, 2022 in respect to the Judgment delivered on 28th July, 2022 in Kikuyu CMCC No.17 of 2020. Later on 25th August, 2022, the Appellants filed an Application seeking stay of execution orders and on 1st September, 2022, the court granted interim stay on condition that the Appellants deposit the decretal sum in court. Therefore, the Appellants filed an application dated 14 September, 2022 seeking to vary the said court orders.

5. On 14th March, 2023, the court directed that the hearing of the application be dispensed with and the Appeal to proceed for hearing. The court also gave directions that the Record of Appeal be filed within 45 days. The Respondent then filed the present application seeking to strike out the Appeal for the reasons that the Record of Appeal had not been filed and that the Appellant had not taken any step to prosecute the appeal.

6. It is noteworthy that the Appeal herein was filed one year ago and no step has been taken to file the Record of Appeal despite directions having been issued. When the matter came up for hearing of the application dated 6th September, 2023, Mr Mwangi, Counsel for the Respondent informed the court that they were unable to file a Record of Appeal since the proceedings in the lower court had not yet been typed and he sought for an extension of time to file the Record of Appeal. However, from the court record, there is no letter or evidence that shows the Appellant has been following up with the Appeal or even the typing of proceedings in Kikuyu Law courts to confirm that they have had an interest in prosecuting the appeal.

7. The court therefore finds that the Applicants have lost interest in having the appeal prosecuted and thus the Notice of Motion Application September 6, 2023 has merit and the same is allowed. The upshot is that the Appeal is hereby dismissed with costs to the Respondent. Subsequently, the decretal amount deposited in court as security be released to the Respondent forthwith.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 4TH DAY OF OCTOBER, 2023. D.O CHEPKWONYJUDGEIn the presence of:Mr. Mwangi for Respondents/ApplicantsCourt Assistant - Martin