Siganga v KCB Bank Kenya Limited [2023] KEHC 23595 (KLR)

Siganga v KCB Bank Kenya Limited (Civil Appeal E014 of 2020) [2023] KEHC 23595 (KLR) (16 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23595 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E014 of 2020

RE Aburili, J

October 16, 2023

Between

Dave Lung’ano Siganga

Appellant

and

KCB Bank Kenya Limited

Respondent

Ruling

1. This appeal was filed on October 15, 2020 which is now 3 years old but it has never been prosecuted hence this court did on September 21, 2022 dismiss the appeal for want of prosecution.

2. On April 3, 2023, the Appellant filed the application seeking to set aside the orders of dismissal and reinstate the appeal for hearing blaming delay on the elevation of the trial Judge to the Court of Appeal and that parties were waiting for directions on maters which were before that Judge.

3. Further, that the Appellant was not served with a Notice of dismissal.

4. The application is not opposed. However, there are so many notices to dismiss the appeal under Order 17 Rule 2 of the Civil Procedure Rules served upon both parties’ counsel in this mater right from 2021 and in addition, the date of September 21, 2022 was given in court by consent of all partiesthe notice .

5. Earlier on August 26, 2021, the court had fixed the matter for Notice to Show cause for dismissal for February 9, 2022 on which latter date both parties were present which was nearly 6 months away and on the latter date, the Appellant claimed that no decree had been obtained. The matter was fixed for April 20, 2022 with a warning to dismiss the same and on the latter date, information from the Appellant was that they submitted decree for signature. The court gave 3 more weeks and fixed the case 5 months away.

6. I was deployed to Kisumu High Court from Siaya High Court from September 15, 2022 and I sat in court on September 21, 2022. No notice of dismissal of suit or appeal was issued yes but the notice was not necessary because the date was given in the presence of both parties and the timelines given were never adhered to.

7. My proceedings for September 21, 2022 say it all. The lower court file was available from May 16, 2021.

8. The Appellant cannot claim that the dismissal of the appeal was erroneous. He cannot say that he now is interested in his appeal. The dismissal order was made on September 21, 2022. The application for reinstatement was brought on April 13, 2023 nearly six (6) months later yet the affidavit sworn by Ms. Netto Advocate claims that the application was brought without undue delay.

9. The delay is not explained to the satisfaction of this court.

10. I do not find the application merited as it is full of half-truths and untruths.

11. I hereby decline to exercise discretion in favour of the Applicant.

12. I dismiss the application dated April 13, 2023 with no orders as to costs.

13. This file is closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 16THDAY OF OCTOBER, 2023. R.E. ABURILIJUDGE