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JudgmentJUSTUS WEKESA WANYONYI VS MARY .N. MUNIALO5 min read

JUSTUS WEKESA WANYONYI VS MARY .N. MUNIALO

High Court at Bungoma High Court · · Rose Ougo

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL APPEAL NO. 15 OF 2016

JUSTUS  WEKESA………..………...…….APPELLANT/ APPLICANT

VERSUS

MARY MUNIALO…………………………………….1ST RESPONDENT

PATRICK MUNIALO……………………….….…..2ND RESPONDENT

RULING

  1. This appeal was filed in 2016. It has never been heard. After declining to dismiss the appeal for want of prosecution in a ruling dated the 11th December 2023, the appellant was granted 60 days to file a record of appeal and fix the matter for directions on the hearing of the appeal.
  2. On the 14.10 2024, the appellant/ applicant filed a Motion brought under sections 1A, 1B, 3 & 3A of the Civil Procedure Act and Article 10, 48, and 159 of the Constitution of Kenya 2010. The applicant seeks the following orders: that the appeal be marked as withdrawn with no orders as to cost, and that an order be made that a fresh re-trial be undertaken in Kimilili PMCC 43 of 2010 and that each party bears its own costs.
  3. The application is supported by grounds on the face of the application and a supporting affidavit sworn by the applicant dated 14.10.2024. The applicant avers that he filed the appeal way back in 2016 and that the appeal has taken time to be admitted because the lower court file has not been traced and the skeleton file is not complete. The court cannot proceed without the original file. The applicant is not the one to be blamed.  A letter from Kimilili Courts states that the file cannot be traced. There is no harm the respondents will suffer if the orders are granted. The applicant has even started paying the decretal sum in Kimilili PMCC No. 43 of 2010 to the respondents, and if this court allows a retrial, then if he succeeds on a fresh hearing, the respondents will refund the money paid.
  4. The 1st  respondent filed a replying affidavit dated 6.11.2024. She depones as follows: the motion is incompetent but also  an abuse of the court process. The applicant appealed over 8 years ago, and they have been subjected to huge financial constraints to defend the appeal. It is a mockery of this court for the applicant to seek to withdraw the appeal with no orders as to costs and yet they were dragged to this court by the applicant and they have incurred costs in the matter. It is a mockery of this court too for the applicant to seek orders of re-trial of the matter when there is an existing judgment which has not been set aside; in addition, the applicant has made partial payment towards settlement of the judgment. The co-respondent has been incapacitated, and others cannot be traced. The applicant intends to defeat the cause of justice. They will suffer prejudice if the orders sought are not granted.
  5. Parties canvassed the application by way of oral submissions. Counsels reiterated what is deposed in the rival affidavit. The 2 issues for determination are: Can the appeal be withdrawn, and can this court order a re-trial in the lower court? A party can file a suit and also withdraw it, if a party decides not to proceed with the suit. The applicant’s request to withdraw the appeal is in order. The respondents seek costs. Costs follow the event. Section 27 (1)  of the Civil Procedure Act provides as follow on Costs; (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order ( emphasis added) . The matter has been in court for the last 8  years; in my view, the respondent is entitled to costs. I therefore allow the applicant to withdraw the appeal with costs to the respondent.
  6. The 2nd issue is whether this court can order a re-trial. Order 42 Rule 26 states as follows,  “If upon the hearing of an appeal it shall appear to the court to which the appeal is preferred that a new trial ought to be had, it shall be lawful for the said court, if it shall think fit, to order that the judgment and decree shall be set aside, and that a new trial shall be had”.   The appeal has not been heard. The applicant is seeking a re-trial, which in my view amounts to a new trial. The applicant has opted to withdraw the appeal on the basis that the original lower court file has not been traced. As correctly submitted by the respondents, the applicant has not demonstrated that he sought to have the judgment in the lower court set aside. A retrial would have been necessary in the lower court proceedings. The memorandum of appeal has no such ground.   The said judgment in the skeleton file was the subject of this appeal. I find that the applicant has failed under the sections and Articles cited in his application and  Order 42 Rule 26, to demonstrate that he is entitled to an order of re-trial. It is interesting to note that the applicant is before this court and is also paying the respondents the decretal sum. Is he really serious, or could he be buying time, as stated by the respondent? Litigation must come to an end. This matter was filed in 2016, and no action was taken by the applicant from 2016, he was woken up by the respondents when they applied to have the appeal dismissed. I find no merit in the application dated 14.10.2024. It is dismissed with costs and this appeal file is closed.

Dated, signed and delivered at Bungoma this 27th day of March 2025.

R.E.OUGO

JUDGE

In the presence:

Appellant/ Applicant                         - Absent

Mr. Onyando                                       -For the Respondent

Wilkister              - C/A  

    JUSTUS WEKESA WANYONYI VS MARY .N. MUNIALO JUSTUS WEKESA WANYONYI VS MARY .N. MUNIALO