Triclover Industries (K) Ltd v Patrick Kitheka Mulatya [2015] KEHC 7570 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL   APPEAL NO.  589 OF 2012

TRICLOVER INDUSTRIES (K) LTD….....….APPELLANT/APPLICANT

VERSUS

PATRICK KITHEKA MULATYA ………………………….RESPONDENT

RULING

This appeal was filed in court on 2nd November 2012 by TRICLOVER INDUSTRIES (K) LTD against the Respondent PATRICK KITHEKA MULATYA.  The appeal  arises  from the judgment and decree  passed by Honourable Ole Keiwa Principal Magistrate delivered  on 19th October 2012  in  Nairobi  Milimani CM CC  No. 2456 of 2009.  The appeal was dismissed  on 5th December 2014  under  the provisions of Order 42  Rule 35 (2)  of the Civil Procedure  Rules  for want of  prosecution after the court issued  Notice to Show Cause why the appeal  could not be dismissed for  want of prosecution and the appellant  did not attend court  to show cause.

On 18th December 2014, the appellant  approached this court  vide a Notice of Motion dated  the same day seeking for reinstatement of the  dismissed appeal and to be heard on  merit  and seeking for stay of  execution of decree pending hearing  and determination  of the application  for reinstatement  of the appeal.

The application for reinstatement of the appeal is the one before me for determination. The said application is predicated  on the grounds, inter alia, that the  appellant had been constantly pursuing  for typed  proceedings  and  judgment  from the lower court  but that  to date  the said documents  had not been typed  or availed to its advocates to enable them compile   and file a record of appeal.

Further, that albeit  its advocates were  served with Notice to Show Cause  why the  appeal herein should not be  dismissed, scheduled  for 5th December  2014, they  were unable to attend  the hearing  and requested  Mr Andrew  Kariu Advocate  to hold their brief  but that  the said Mr Kariu arrived in court after the appeal had  already  been dismissed  for want of prosecution.  That their non attendance to show cause   was not intentional.  The appellant urges the court to exercise its discretion to restore the appeal so that it can be heard on merit.  The appellant also sought for stay of execution of decree because it was apprehensive that the respondent would execute it anytime since the earlier stay granted had lapsed upon the appeal being dismissed on 5th December 2014.

The said application was also supported by the affidavits sworn by Peris Karanja and Andrew Kariu Advocates.

In their  separate sworn affidavits, the two  advocates contend that the decretal  sum had  been deposited  in court amounting to Kshs 351,500 on 20th November  2012  and that  they had timeously filed this appeal  on behalf  of their client  following  judgment  of     19th October 2012.  That  they applied  for copies  of proceedings  and judgment  on 2nd November 2012  and paid for the  same on 6th November 2012  and had been constantly  pursuing the same, annexing PK9 copies of letters requesting  for  the same between  November 2012 and July 2012 but that to date, the proceedings  had never been availed.  That on the 5th December 2014  when this appeal  was due for  Notice to Show Cause  for which  they were duly served with Notice, Mr Andrew Kariu advocate was  requested to hold brief but that he arrived  in court after the matter  had been dealt with after attending  to another matter CA 2220/2007  Peter K. Karimi vs The commissioner of Lands  and that immediately  thereafter they embarked on preparing this application for  reinstatement of this appeal.

The appellant urged the court  to exercise  its discretion  to restore  the appeal   and order for  stay of execution until  the  appeal is heard and determined, by its application dated 12th January  2015  which this court  did direct that the two applications be heard together.  The appellant states that it is willing to abide by any other conditions or directions that this court may impose on it for the appeal to be reinstated.

Mr Andrew Kariu advocate  too swore  an affidavit  confirming what M/S Peris Karanja  deposed that indeed  he had been  requested to hold  brief for  the appellant’s  counsel in  this matter on 5th December 2014  but  that  since he was engaged  in Civ. App 2220/2007  he arrived in court after the Notice to Show Cause had been heard  and the appeal dismissed  hence  he relayed the information  to the appellant’s  counsel who immediately lodged this application for reinstatement  of the appeal and for stay of execution pending  appeal.  The latter application as stated earlier is dated 12th January 2013.

The two applications were heard  by way of oral submissions  on 21st April 2015 with Mr Kariu appearing  for the appellant  and submitting, reiterating  the grounds upon which the application  was premised  and the depositions  in his affidavit  and the affidavit of Peris Karanja advocate.  He contended  that the lower  court had been non responsive  in availing the proceedings and judgment appealed  from and that they had  constantly  sought to know the fate of  those proceedings  and judgment  to facilitate  preparation of the record  of appeal but to no avail.  Counsel for the appellant  also maintained  that they  had not been indolent  but that  the lower court   was to blame  for the delay and that the  High Court  is also to blame  for administrative mistakes for not  calling for the submission  of the  lower court file.

Mr Kariu charged that for very strange reasons, all the letters written to the lower court were missing from the court file but that they had been received by the court as annexed to the affidavit of Peris Karanja.  In his view, the mischief of the missing letters from the file can be beneficial to the respondent, relying on the case of Wanandege vs Gaboi & Another (2002) 2EALR EA 652.

Mr Kariu urged that if the appeal is reinstated then they pray for stay of execution pending hearing and determination of the appeal on merit.  In his view, the court did not act suo moto to dismiss the appeal but was prompted by the respondent who wrote to the court.

The  applications for restoration of the appeal and stay of execution  were opposed   by Miss Arati  counsel for the respondent  who submitted  that the  matter  has been pending  in court for the  last  9 years  and that  the  appellant had gone to sleep  after filing a Memorandum of Appeal.  She relied  on the replying affidavits  sworn on  4th March 2015 contending that the delay  was inordinate  and that it  was the respondent  who had been pushing  for the proceedings  and informed the appellant’s  counsel that the said proceedings  were ready  for collection.  In  her view, both parties received   the Notice to Show Cause  dated 11th November 2014 and it mattered  not that  it was the respondent   who  had prompted  the court to issue Notice to Show Cause  since the  appellant  had been indolent on having  the appeal  heard and determined.

Counsel for  the respondent further submitted  that from the time  the appellant  was  served  with  the Notice to Show Cause, it had time to prepare  record of appeal but instead slumbered  and even failed to attend court  to show cause  why the appeal  should not  be  dismissed.  She submitted that the appellant had exhibited only 2 letters concerning inquiries on the proceedings and that therefore where an appellant fails to prosecute the appeal, it is deemed to be withdrawn.  She relied on the case of Kenya Shoe and Leather Workers Union vs Human Resource Strategic Partners Ltd.

On the issue that some letters  written   to the lower court were  missing  from the court file, Miss Arati stated that  there was no letter of complaint to the Chief  Magistrate and urged this court to dismiss the  twin applications  and  allow the  execution  of decree to proceed as the decretal sum was held by the court.  She concluded that delayed justice had   denied justice for the respondent who lost his job because of this cause of action.

In response, Mr Kariu stated that the Notice to Show Cause was mischievous since Order 42 Rule 35 only comes into effect when the court moves itself to dismiss the appeal for want of prosecution.  He maintained that the appeal had merit and that the same should be heard   on merit as their failure to attend court on 5th December 2014 had been explained.

I have carefully considered the appellant’s twin applications for reinstatement of the appeal and for stay of execution pending hearing and determination of the appeal on merit.  I have examined all the affidavit evidence, the annextures thereto and submissions by both parties’ advocates on record and the relevant applicable law and precedents relied upon.

In my view, the issues for determination is two namely:

Whether the appeal as dismissed n 5th December 2014 should be reinstated.

Whether the court should grant stay of execution.

On  the 1st issue, it is clear  that this appeal was  dismissed  on 5th December 2014  for want  of prosecution following a Notice to Show Cause issued by this court  on 11th November 2014  and served on both parties  advocates.

No  doubt, the notice was prompted  by the respondent’s advocates letter  to the Deputy Registrar  dated  4th November 2014  urging the court to list the matter for dismissal under  Order 42 Rule 35(2)  of the Civil Procedure Rules,2012  and stating  that since 2nd November 2012 no steps had been taken to  prosecute  the matter.

The appellant’s  advocate was served on 12th November 2014  and on  5th December 2015  when the Notice to Show Cause  came  up for hearing only the respondent’s  counsel appeared  in court.

The court  after examining the  record  and satisfying  itself that indeed  the matter  was last  in court on 20th September 2013  before Honourable Hatari Waweru J and upon satisfying itself that the lower court record   was  availed on 4th August 2014  upon which  the respondents had then written  to court  urging it to list the appeal for  dismissal, did  dismiss  this appeal for want of prosecution, as the appellant  did not attend court  to show cause.

The appellant has now approached the court seeking for reinstatement of the appeal and stay of execution.  The application  was  filed almost  immediately  after the dismissal  on 18th December 2014  by which time the lower  court file  had nonetheless been expeditiously resubmitted to the lower court  on 9th December 2014 , upon extraction  of the order of dismissal of the appeal.

The court  observes that  from the affidavit  evidence  by the appellant’s  counsel, there is  ample  evidence to show that  they have not  been  indolent  in prosecuting  this appeal in that  immediately  after filing  the appeal, they did  on 9th November  2012  request  for certified  copies of proceedings and judgment  and followed  by another request filed on 18th December 2013, 13th May 2014  and 31st July 2014  just a few days  before the file from the lower court  was received  in the High Court  on     4th August 2014. There is no evidence that the Chief Magistrate’s Court  ever responded  to the inquiries made by the appellant’s counsel, who had  already deposited the whole of the decretal sum in court  for the due performance of  decree  as a condition for stay pending  appeal pursuant to the provisions of Order 42 Rule 6(2) of the Civil procedure Rules.

In my view, a considering the incessant requests made to the lower court and the speed at which the appellant sought to reinstate the dismissed appeal showed that it had not lost interest in the appeal.

Further, this court accepts the explanation given by Mr Kariu that he arrived   in court after the appeal had been dismissed.  At that  time, this court did not have  a chance to see the evidence  that has been annexed  showing  the efforts  made to obtain  the proceedings and judgment  from the lower court  by the  appellant.  Had that evidence been availed to the court, I see no reason why this court could not have accorded the appellant an opportunity to be heard, even if it was on new conditions.

I agree  with the respondent’s  counsel  that where  a party  files  an appeal and goes  to sleep, delay  defeats equity  and this court  would  invoke  its inherent  jurisdiction  under Section 3A and the overriding  objectives  under Sections  1A and 1B of the Civil Procedure Act as well as  Article 159(2) (b) of the Constitution  which abhors  delayed  justice  and dismiss the appeal.

Nonetheless, I find that in the circumstances of this case, the appellant is not wholly to blame for the delayed justice, which delay has been sufficiently explained.  The court must therefore, in my view, not oust the appellant from the seat of justice for no absolute fault of its own.  The respondent must however not be blamed for being vigilant in setting in motion the process of having the appeal dismissed for want of prosecution.  Sections 1A and 1B of the Civil Procedure Act  commands parties to the civil proceedings and their advocates to assist  the court tin achieving  the overriding  objectives  of the Act  and in ensuring  that justice  is administered  expeditiously, proportionately  and in a cost  effective  manner.

However, this court must weigh the prejudice that is likely to be suffered if this appeal is not reinstated.  In my view, the injustice of dismissing this appeal is graver than the  justice of the case in that  the court is conscious  of the  constitutional imperatives that the  right of appeal  and therefore  the right to  be heard on  appeal as exercised  by the appellant herein  is a constitutionally  guaranteed right which should not be  taken away  by the  strike  of a pen  where sufficient  cause  has been  shown why  there was delay in prosecuting  the appeal and for failure to  attend court on 5th December 2015  by  the appellant’s advocate to  show cause  why the appeal  could not be dismissed for  want  of prosecution.

I am enjoined  to accept the  holding in Richard Ncharpi Leiyagu vs IEBC & 2 Others CA 18/2013 wherein  the Court  of Appeal  was categorical that

“ We agree  with the noble  principles  which go further  to establish  that  the court’s discretion to set aside  an exparte  judgment  or order  for that matter is intended to avoid  injustice or hardship  resulting  from an  accident, inadvertence  or excusable mistake or error  but  not to assist  a person who deliberately seeks to obstruct or delay the course of justice”.

The question I ask  is whether  the appellant’s failure to attend to  court on 5th December 2014  to show  cause  why the appeal could not  be dismissed  under Order 42 Rule 35(2) constituted  an excusable, mistake  or  was it  meant to  deliberately delay the cause  of justice. I have already stated that the appellant contended that  the advocate  briefed  to attend  court was engaged  in another matter Civ. App 22207/2009 and  arrived  in court after  the court had  already dealt  with the Notice  to Show Cause  and notified  the appellant’s  counsel who, with alarcrity,  took  steps  to lodge  this application for reinstatement and stay  of execution.  The mistake of not attending court in time was the appellant’s counsel, but in the case Belinda Murai & Others  vs Amoi Wainaina (1978) KLR  2782 (CALL) Madan J A     (as he  then was described  what  constitutes  as mistake  in the following words:-

“A mistake   is a mistake.  It is no less a mistake because it is unfortunate slip.  It is no less pardonable because it is committed by senior counsel, though in the case of junior counsel the court may fee compassionate more readily.

A blunder on a point of law can be a mistake.  The door of justice is not closed because a mistake has been made by a lawyer of experience who ought to have known better.  The court may not condone it but it ought to certainly to do whatever is necessary to rectify it if the interests of justice so dictate.  It  is known that courts of justice  themselves  make mistakes  which is  politely referred  to as erring  in  their interpretation of laws  and adoption of a legal point  of view  which courts  of appeal  sometimes overrule.”

The respondent argued that the appellant was aware of the date for Notice to Show Cause but failed to attend court and that the explanation for the default was not acceptable.  I am of the view that the reason for non attendance  at the hearing of the  Notice to Show Cause  as deposed  by Mr Andrew Kariu advocate is  candid  and excusable.

I am  inclined to give the appellant  a benefit of doubt that  he was attending  to another matter  and hoped  to finish and attend to Notice to Show Cause  but could not make it  in time.  He indeed made a blunder of miscalculation of the time the Notice to Show Cause   was to be called out.

In Phillip Chemwolo & Another  vs Augustine Kubede (1982-88) KAR  103 at 1040, Apaloo JA ( as  he then was held:-

“ Blunders  will continue to be made from  time to time  and it does not  follow that  because of a mistake  has been  made that  a party should  suffer the  penalty of not having his case heard  on merit.  I think  the broad  equity approach to this matter is that  unless  there is  fraud  or intention to over each, there  is no error or default that  cannot be put  right by payment  of costs .  The court  as is  often  said  exits  for  the purpose of deciding the rights of parties  and not the purpose of imposing  discipline.

In this case, the inconvenience caused to the respondent by the non attendance of the appellant’s counsel can be compensated by costs.

In Richard  Ncharpi Leiyagu  case (Supra) the Court of Appeal stated:

“  The  right to  a hearing has  always  been a well protected right  in our  constitution  and is also the  cornerstone  of the Rule of law.  This is why  even if  the court have inherent jurisdiction  to dismiss  suits, this  should be done in circumstances  that  protect  the integrity of the court process  from abuse  that would amount to  injustice  and at the end  of the day there  should be proportionality”

This court does exist to serve substantive justice for all parties to a dispute before it.  The respondent  too deserves justice  and his  legitimate  expectation is that  the appeal  be expedited  so that he can know whether  or not he will reap and or enjoy the fruits of this lawfully  obtained  judgment.  In this case, however, the decree  is a monetary one and  the money is  deposited  in court as security  for due  performance  of decree, albeit it would have been appropriate  if the parties  considered transferring  the said  sums into an interest  earning  account  due to inflationary  trends and the continued weakening of the Kenya shilling day by day against foreign currencies.

It is  for the above reasons  that I exercise  my discretion  and allow  the appellant’s  application  for reinstatement  of  the appeal as dismissed  on 5th December 2014 and set aside  the order  of dismissal made on the same date.

On the issue  of stay, having  found that it was not the appellant’s  fault that  there had been some  considerable  delay  in having  his appeal heard  expeditiously and noting  that  the appellant  had actively  engaged  the lower court to supply it with certified  copies  of proceedings  and judgment  to no avail or response, it is only  fair and just that  the appeal having been  reinstated, the stay of execution as initially granted too, be  reinstated.  Accordingly, I reinstate the order of stay of execution of decree in the lower court pending hearing and determination of this appeal on the same terms that were made earlier.

So as  not to allow the appellant  to go into some form  of inertia, I order  that the appellant do compile, the file  and serve the respondent  with  a record of appeal within  30 days  from the date  hereof.

I further direct  that the Deputy Registrar  of the High Court  do call  for the resubmission of the lower court  file to this  court within 14 days  from the date hereof  upon which the appeal herein should be placed before a judge of reconsideration under Section 79B of the Civil Procedure Act .

The matter  shall  be mentioned on 30th July 2015  to confirm  compliance  with the orders herein.

As the appellant’s failure to  attend court  to Show Cause  is what  has led  to these  protracted  proceedings, I order that they  pay to the  respondent  the costs of  the application for reinstatement  of the appeal and stay.  The said costs shall be taxed and paid forthwith in default execution to issue.

Dated, signed and delivered in open court this 30th day of June 2015.

R.E. ABURILI

JUDGE

30/6/2015

30. 6.2015

Coram Aburili J.

C.C. Samuel

Mrs Otieno hold brief for Mrs Arati for respondent

No appearance for appellant.

COURT- Ruling read and pronounced in open court as scheduled.  Mention on 30th July 2015.

R.E ABURILI

JUDGE

COURT – Respondent to serve appellant with mention notice of for 30th July 2015

R.E. ABURILI

JUDGE

30. 6.2015

Mrs Otieno- We seek directions on our application filed this morning.

COURT-  In view  of the reinstated  appeal, the respondent’s  application  filed this  morning dated 18th June  2015  shall be  heard on 30th July 2015  service to be effected  upon the  appellant.

R.E. ABURILI

JUDGE

30. 6.2015