Supa Hauliers Ltd v David Masinde Musungu [2017] KEHC 4024 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL  NO. 511  OF 2015

SUPA HAULIERS LTD .................................APPELLANT/RESPONDENT

-V E R S U S –

DAVID MASINDE MUSUNGU ......................RESPONDENT/APPLICANT

RULING

1) David Musinde Musungu, the respondent herein, filed an action against Supa Hauliers Ltd, the appellant herein, before the Chief Magistrate’s Court, Milimani Commercial Courts.  In the aforesaid suit, the respondent sought for damages for injuries he sustained.  The suit was heard and in the end, judgment was entered in favour of the respondent.  The appellant was aggrieved, consequently, it preferred this appeal.

2) The respondent has now taken out the motion dated 18th January, 2017 the subject matter of this ruling in which it sought for the following orders:

1. THAT the appellant’s memorandum of appeal dated 29/10/2015 and/or the appeal herein be dismissed for want of prosecution with costs to the respondent/applicant.

2. THAT the sum of 483,032. 63/= plus accrued interest thereon deposited in a joint interest earning account of both law firms herein at Chase Bank Ltd, Hurlingham Branch on 13/1/2015 as a condition for stay of execution pending appeal be released to respondent’s advocate herein.

3. THAT costs of this application be provided for.

3) The motion is supported by the affidavit of Fidelis Maithya Mutisya.  The appellant was served  it filed a replying affidavit to oppose the motion.  When the motion came up for interpartes hearing, learned counsels recorded a consent order to have the motion disposed of by written submissions.

4) I have considered the grounds stated on the face of the motion and the facts deponed in the supporting and opposing affidavits. I have also considered the rival submissions.

5)  The applicant/respondent avers that the memorandum of appeal herein was filed on 26/10/2015 and the appellant has taken no steps to set down the appeal for hearing nor prepared and filed a record of appeal while at the same time is still enjoying orders for stay of execution to his prejudice and detriment.  The applicant continues to state that it is obvious that the appellants are not desirous of prosecuting the appeal i.e more than a year having lapsed since its filing and he continues to suffer by the delay to enjoy the fruits of his judgement.  It is in the respondent/ applicant’s submission that the appellant has chosen to sleep on their rights to his detriment and as such  this court should grant the application as prayed.

6) The appellant on the other hand submit that the delay in prosecuting the case was due to the delay in obtaining typed proceedings hence not able to prepare a record of appeal in good time, in the absence of which and from the wording of Order 42 rule 13, of the Civil Procedure Rues, the appeal would not be set down for directions without the typed proceedings, exhibits, judgment and decree of the trial court , which the appellant had not received.  The appellant contend that this matter is yet to be given directions by the court and therefore cannot be dismissed for want of prosecution.  In Njoka tanners ltd =vs= Catherine Kagwiria (2008) eKLR it was held inter:

“When a party who is charged with the responsibility of fixing his case for hearing drags his feet, the other party can always fix the matter for hearing and serve the hearing notice on the sleeping party.  If this fails to nudge the sleeping party into action, then the respondent would have a good justification to at the court to dismiss the matter.”

7) The appellant submits that the appeal is yet to be set down for directions despite requests by the appellant to have it listed for hearing.

8) The respondent/applicant believes that he is highly prejudiced by the pending appeal even though the decretal sum was deposited in a joint interest earning account for both law firms, because he cannot enjoy the fruits of his judgment by the lower court.

9) The question therefore is whether the appellant has given satisfactory explanation for the  delay in prosecuting the appeal and whether such delay is inordinate.  The appellant has blamed the delay on the failure to get typed proceedings they had applied for from the trial court.

10) The averment in the replying affidavit that the delay was due to the failure by the court to supply the appellant with types proceedings is not contested. I find the explanation to be plausible.

11) In order to avoid the matter procrastinating further I issue an order directing the appellant to have the appeal prosecuted within 4 months from the date hereof.  In default, the respondent will be at liberty to apply for summary dismissal for want of prosecution.  For this reason alone I decline to grant the orders sought and instead dismiss the motion with no order as to costs.

Dated, Signed and Delivered in open court this 14th day of July, 2017.

J. K. SERGON

JUDGE

In the presence of:

....................................................  for the Appellant

..................................................... for the Respondent