This ruling is in respect to the Application dated 18 th February 2025 wherein the Applicant seeks the dismissal of the Appeal for want of prosecution.
The Application is brought under Order 42 Rule 20 of the Civil Procedure Rules, is supported by the Respondent/Applicant’s affidavit and is based on the following grounds: -
THAT the Appellant has not taken any steps to file the Record of Appeal for over 60 days since leave to appeal out of time and the appeal were filed.
THAT proceedings in this matter were certified ready for use in March 2024.
THAT the Appellant was not in Court when the matter came up on 10 th February 2025.
THAT so far, there are no reasons preferred as to why the Record of Appeal has not been filed.
The Appellant opposed the Application through the Replying Affidavit of its Legal Officer Ms. Beatrice Muraguri who avers that the Respondent’s assertions are false and are made up of misrepresentation of facts aimed at denying the Appellant a chance to canvass the appeal on merit. She states that there was a delay, by the trial court, in typing of the proceedings and that after several mentions the Appellant’s advocates were on 10 th February 2025 advised that the typed proceedings and lower court record had been availed.
The Appellant’s deponent averred that the Appellant received typed proceedings but that they required more time to place them on the court file as the said documents were bulky. She added that Appellant is committed to prosecuting the Appeal and that it will be in the interest of justice to have the same determined on merit. She explained that the delay in filing the record of appeal was not inordinate.
The Application was canvassed by way of written submissions which I have considered.
The main issue for determination is whether the Application is merited.
Order 42 of the Civil Procedure Rules provides as follows: -
20. Dismissal of appeal for appellant’s default [Order 42, rule 20]
(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, and has not filed a declaration under rule 16, the court may make an order that the appeal be dismissed.
(2) Where the appellant appears, and the respondent does not appear and has not filed a declaration under rule 16(3), the appeal may be heard ex parte.
35. Dismissal for want of prosecution [Order 42, rule 35]
(1) Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.
(2) If, within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal.
The record shows that the Appellant was granted leave to file an appeal out of time on 17 th October 2024 with a rider that the appeal be filed within 14 days from the date of the Ruling. The Appellant contends that even though certified copies of proceedings were ready on 15 th January 2025 they were not availed to them until 24 th February 2025 when they appeared in court to confirm filing of the Record of Appeal.
I note that when the matter came up before me for Mention on 20 th March 2025, Ms. Magoma, Counsel for the Appellant, informed the Court that the Record of Appeal had been placed in the Court file. I therefore find that the delay in filing the record of appeal was neither deliberate nor inordinate.
I also note that the Appeal was yet to be admitted and/or set down for directions. The import of Order 42 Rule 35 (1) cited hereinabove is that an appeal may only be dismissed where directions have been taken and the appeal admitted for hearing. In the case of Pinpoint Solutions Limited and Another vs. Lucy Waithegeni Wanderi (as the Legal Administrator of the Estate of James Nyanga Muchangi) [2020] eKLR , Kamau J. held thus: -
“[20]. The provisions of the law relating to dismissal cannot be read in isolation. The bottom line is that directions must have been given before an appeal can be dismissed for want of prosecution. Indeed, there does not appear to be any penalty where an appellant fails to proceed as per Order 42 Rule 11 and Order 42 Rule 13 of the Civil Procedure Rules, 2010.
[21]. This court took the view that an appeal cannot be dismissed before directions had been given. As there was no indication that directions had been given herein, the Appeal herein could not be dismissed under Order 42 Rule 35(1) of the Civil Procedure Rules. In any event, there was also no evidence that the Registrar had issued a notice under Order 42 Rule 12 of the Civil Procedure Rules. There was also no indication that the lower court file and proceedings had been forwarded to the High Court for the Registrar to proceed as aforesaid…”
Taking a cue from the above cited case, I find that since the Appeal was yet to be admitted for hearing and directions taken by the parties, there is no appeal available for dismissal by this court.
I further find that in balancing the parties’ competing rights, dismissing the appeal, in the circumstances of this case, is a draconian move that will have the effect of driving the Appellant away from the seat of justice. I further find that the explanation offered by the Appellant for the delay in filing the record of appeal is plausible. I am guided by the principles expressed by the Court of Appeal in Vishva Stone Suppliers Company Limited vs. RSR Stone (2006) Limited [2020] eKLR where it was held thus: -
“Turning to the request to allow the applicant to exercise his now undoubted constitutionally underpinned right of appeal, the position is…. crystalized …. in the case of Richard Ncharpi Leiyagu vs. IEBC & 2 Others (supra); Mbaki & Others vs. Macharia & Another [2005] 2EA 206; and the Tanzanian case of Abbas Sherally & Another vs. Abdul Fazaiboy, Civil Application No. 33 of 2003; for the holding inter alia that:
the right to a hearing is not only constitutionally entrenched but it is also the corner stone of the Rule of law;
the right to be heard is a valued right; and
that the right of a party to be heard before adverse action or decision is taken against such a party is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of natural justice…”
I also note that the Record of Appeal is now in the court file and find that it will be fair for the parties to proceed to the admission of the said appeal for hearing.
In the end, I find that the instant Application is not merited and I therefore dismiss it with orders that costs of the Application shall abide the outcome of the Appeal.
It is so ordered.
The Application is brought under Order 42 Rule 20 of the Civil Procedure Rules, is supported by the Respondent/Applicant’s affidavit and is based on the following grounds: -
THAT the Appellant has not taken any steps to file the Record of Appeal for over 60 days since leave to appeal out of time and the appeal were filed.
THAT proceedings in this matter were certified ready for use in March 2024.
THAT the Appellant was not in Court when the matter came up on 10 th February 2025.
THAT so far, there are no reasons preferred as to why the Record of Appeal has not been filed.
The Appellant opposed the Application through the Replying Affidavit of its Legal Officer Ms. Beatrice Muraguri who avers that the Respondent’s assertions are false and are made up of misrepresentation of facts aimed at denying the Appellant a chance to canvass the appeal on merit. She states that there was a delay, by the trial court, in typing of the proceedings and that after several mentions the Appellant’s advocates were on 10 th February 2025 advised that the typed proceedings and lower court record had been availed.
The Appellant’s deponent averred that the Appellant received typed proceedings but that they required more time to place them on the court file as the said documents were bulky. She added that Appellant is committed to prosecuting the Appeal and that it will be in the interest of justice to have the same determined on merit. She explained that the delay in filing the record of appeal was not inordinate.
The Application was canvassed by way of written submissions which I have considered.
The main issue for determination is whether the Application is merited.
Order 42 of the Civil Procedure Rules provides as follows: -
20. Dismissal of appeal for appellant’s default [Order 42, rule 20]
(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, and has not filed a declaration under rule 16, the court may make an order that the appeal be dismissed.
(2) Where the appellant appears, and the respondent does not appear and has not filed a declaration under rule 16(3), the appeal may be heard ex parte.
35. Dismissal for want of prosecution [Order 42, rule 35]
(1) Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.
(2) If, within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal.
The record shows that the Appellant was granted leave to file an appeal out of time on 17 th October 2024 with a rider that the appeal be filed within 14 days from the date of the Ruling. The Appellant contends that even though certified copies of proceedings were ready on 15 th January 2025 they were not availed to them until 24 th February 2025 when they appeared in court to confirm filing of the Record of Appeal.
I note that when the matter came up before me for Mention on 20 th March 2025, Ms. Magoma, Counsel for the Appellant, informed the Court that the Record of Appeal had been placed in the Court file. I therefore find that the delay in filing the record of appeal was neither deliberate nor inordinate.
I also note that the Appeal was yet to be admitted and/or set down for directions. The import of Order 42 Rule 35 (1) cited hereinabove is that an appeal may only be dismissed where directions have been taken and the appeal admitted for hearing. In the case of Pinpoint Solutions Limited and Another vs. Lucy Waithegeni Wanderi (as the Legal Administrator of the Estate of James Nyanga Muchangi) [2020] eKLR , Kamau J. held thus: -
“[20]. The provisions of the law relating to dismissal cannot be read in isolation. The bottom line is that directions must have been given before an appeal can be dismissed for want of prosecution. Indeed, there does not appear to be any penalty where an appellant fails to proceed as per Order 42 Rule 11 and Order 42 Rule 13 of the Civil Procedure Rules, 2010.
[21]. This court took the view that an appeal cannot be dismissed before directions had been given. As there was no indication that directions had been given herein, the Appeal herein could not be dismissed under Order 42 Rule 35(1) of the Civil Procedure Rules. In any event, there was also no evidence that the Registrar had issued a notice under Order 42 Rule 12 of the Civil Procedure Rules. There was also no indication that the lower court file and proceedings had been forwarded to the High Court for the Registrar to proceed as aforesaid…”
Taking a cue from the above cited case, I find that since the Appeal was yet to be admitted for hearing and directions taken by the parties, there is no appeal available for dismissal by this court.
I further find that in balancing the parties’ competing rights, dismissing the appeal, in the circumstances of this case, is a draconian move that will have the effect of driving the Appellant away from the seat of justice. I further find that the explanation offered by the Appellant for the delay in filing the record of appeal is plausible. I am guided by the principles expressed by the Court of Appeal in Vishva Stone Suppliers Company Limited vs. RSR Stone (2006) Limited [2020] eKLR where it was held thus: -
“Turning to the request to allow the applicant to exercise his now undoubted constitutionally underpinned right of appeal, the position is…. crystalized …. in the case of Richard Ncharpi Leiyagu vs. IEBC & 2 Others (supra); Mbaki & Others vs. Macharia & Another [2005] 2EA 206; and the Tanzanian case of Abbas Sherally & Another vs. Abdul Fazaiboy, Civil Application No. 33 of 2003; for the holding inter alia that:
the right to a hearing is not only constitutionally entrenched but it is also the corner stone of the Rule of law;
the right to be heard is a valued right; and
that the right of a party to be heard before adverse action or decision is taken against such a party is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of natural justice…”
I also note that the Record of Appeal is now in the court file and find that it will be fair for the parties to proceed to the admission of the said appeal for hearing.
In the end, I find that the instant Application is not merited and I therefore dismiss it with orders that costs of the Application shall abide the outcome of the Appeal.
It is so ordered.