JACKSON NDUNGU AND AMOS WAWERU NDUNGU VS CHRISPINE MOKAYA MOSOTI

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

(CIVIL DIVISION)

HCCA NO E464 OF 2023

JACKSON NDUNGU………………………………………………….……1^ST APPELLANT

AMOS WAWERU NDUNGU……………………………………………...2^ND APPELLANT

VERSUS

CHRISPINE MOKAYA MOSOTI……………………………………………RESPONDENT

RULING

1. The Respondent, Chrispine Mokaya Mosoti, has taken out a Notice of Motion (the Application) dated 18^th December 2024 under Order 17 Rule 2(3) of the Civil Procedure Rules seeking to have the Appeal filed by the Appellants herein dismissed for want of prosecution.
2. He has advanced grounds in support of the Application that the Appellants sought interim stay through the Application dated 9^th June 2023 with the condition that the Appellants deposits Kshs 800,000 in court on 14^th July 2023. They were further leave to file Record of Appel within.
3. The Applicant has stated further that although the Appellants’ counsel informed the court that security in the sum ordered by the Court had been deposited, there was no proof provided to the Court for such payment and that the Appellants have not filed and served the Record of Appeal. The Applicant has stated that 18 months have lapsed since the orders to file Record of Appeal were issued but the Appellants have failed to comply, a demonstration that they have lost interest in the Appeal.
4. Ms Terer attended court on behalf of the Respondent. She made brief submissions in support of the Application. There was no attendance by the Appellants or their counsel. The Application had been served on the Appellants together with a notification that the application would be heard on 21^st January 2025.
5. I have considered the application and the grounds in support of the same. I have also read the court file. I have noted that the Appellants, through a Noticed of Motion dated 9^th June 2023 filed under Certificate of Urgency was presented before the Judge (Meoli, J) on 15^th June 2023 for directions. The Judge certified the application urgent and slotted it for hearing on 24^th July 2023. She granted stay temporary stay of execution pending inter partes hearing of that application on condition that the Applicants deposits security in the sum of Kshs 800,000 in court by 14^th July 2023.
6. The court records show that on 24^th July 2023, the matter was before the Judge who recorded the following order:

“By consent, Motion dated 9/6/2023 allowed in terms that the entire decretal sum be placed in a joint interest earning account within 45 days. By close of business today, the evidence of deposit and Memorandum of Appeal be served on the Respondent. Deposited sums to be released to depositor. Costs in the Cause.”

1. The record shows that this matter has been mentioned before the Deputy Registrar on various occasions with no progress on filing of the Record of Appeal. The last mention by the Deputy Registrar before the file was placed before me for hearing of this Application was on 19^th December 2024.
2. Order 17 2 (3) of the Civil Procedure Rules allows any party to the suit to file an application for dismissal in line with Order 17 (2) (1) which provides that:
3. In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
4. I have considered this matter, and I am satisfied that the Appellants have lost interest in their appeal. Despite service, the Appellants and their counsel have failed to move to court and file Record of Appeal or oppose this application.
5. Consequently, the Appeal filed herein is hereby dismissed for want of prosecution. Costs shall be paid by the Appellants to the Respondent who is the Applicant in this Application. Orders shall issue accordingly.

Dated, signed and delivered this 4th February 2025.

S. N. MUTUKU

JUDGE