Wanyonyi v Munialo & another [2023] KEHC 27118 (KLR)

Wanyonyi v Munialo & another (Civil Appeal 15 of 2016) [2023] KEHC 27118 (KLR) (11 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27118 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal 15 of 2016

REA Ougo, J

December 11, 2023

Between

Justus Wekesa Wanyonyi

Appellant

and

Mary N Munialo

1st Respondent

Patrick Munialo

2nd Respondent

Ruling

1. The applicants/ respondents in a notice of motion dated the 28th of September 2017 seek to have the appeal filed by the appellant dismissed for want of prosecution. They also seek the costs of the application and costs of the appeal. The application is supported by the affidavit of Ann Kibe who has the conduct of the matter on behalf of the respondents. She depones as follows that; she has been authorised to swear the affidavit on behalf of the respondents. The matter was filed in court on the 13th of April 2016. The appellant has failed to prosecute the appeal. The appellant is disinterested in the matter and the continued presence of the matter in court is prejudicial to the respondents/ applicants, thus the appeal should be dismissed for want of prosecution.

2. The appellant filed a replying affidavit dated the 25th of July 2023. He depones as follows that; the application has been made in bad faith. His appeal was filed in 2016 and he is desirous of having the appeal heard and determined. Since 2016 he has been visiting the court registry to find out if the lower court file had been brought for admission of the appeal. The last time he visited the registry was in December 2020 and the in-charge told him to remain at home he requested his phone number to enable him to call him once the appeal was admitted. He has been waiting for communication from the in-charge registry. He received a court document from court on 12/7/2023 and upon attending he discovered that the applicants had filed the present application. He had not been served with the application, he only got a copy from the court. From 2016 he has been visiting Kimilili court to find out why the lower court hasn't been sent to the High Court for admission of his appeal. The court file does not have an original file but a skeleton file whose source he does not know. The court cannot sacrifice him for dismissing his appeal because he did not file a record of appeal, his appeal has been pending for more than one year. He is ready to file his record of appeal if the court grants him copies of the purported pleadings from Kimilili law courts. He filed the appeal in person, he prays for mercy. That when the application was filed on 28/9/2017 the appeal had not been admitted and there was no way the appeal could be dismissed for want of prosecution before the same is admitted. The appeal was admitted for hearing on 6/10/2021 and he moved appropriately. There is no harm if the application is dismissed to enable him file his record of appeal.

3. The application was canvassed by way of oral submissions. I have considered the rival affidavits and the oral submissions. There is no dispute that the appeal was filed in 2016. The respondent’s main reason for not prosecuting his appeal is that he was not able to get the subordinate court file. The applicants argued that the respondent has failed to mention the person he was dealing with at the registry and that the respondent is not saying the truth.

4. I note that the respondent was acting in person in the lower court. It is possible that he did seek the proceedings from the lower court. What is before the courts is a skeleton file. Parties should ensure that their matters are heard expeditiously. The respondent argues that it is the court officials who are partly to blame for the delay. This is possible. He has shown interest in prosecuting his appeal. I also note that the respondent filed their application in 2017 and set it down for hearing in 2023. I give the respondent the benefit of doubt and will give him a chance to prosecute his appeal. The respondent shall file and serve a record of appeal within sixty (60) days from the date of this ruling in default the appeal shall stand as dismissed with costs to the applicants. This matter will be mentioned before the judge for directions. The Deputy Registrar is to avail the lower court on the said date. Costs shall be in the cause.

DATED, SIGNED, AND DELIVERED AT BUNGOMA THIS 11TH DAY OF DECEMBER 2023. R.E. OUGOJUDGEIn the presence of:Mr. Onyando- For the ApplicantsMr. R. Wamalwa -For the RespondentWilkister -C/A