- This an appeal from the Ruling and order given on 2/6/202223 by HON R L Musiega in Nairobi Milimani CMCC 7920 of 2016. The memorandum of Appeal was filed on 9/8/2023. I shall not deal with whether the Appeal was filed within time. That is for another time, another day. Another season.
- The case appears to be a proxy one by Michael Holsten. The appellant was dissatisfied with the judgment and decree of the court and filed an appeal with humongous 9 grounds.
- It is unnecessary to set them out herein as the majority are repetitive, unseemly and wordy. They are anathema to good pleadings and an unnecessary affront to grammar and legal writing. It is a classic study on how not to write a Memorandum of Appeal. Order 42 Rule 1 of the Civil Procedure Rules provides are doth: -
“1. Form of appeal –
- Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.”
- The Court of Appeal had this to say about compliance with Rule 86 of the Court of Appeal Rules (which is pari materia with Order 42 Rule 1 of the Civil Procedure Rules) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -
“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:
“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”
- The only issue dealt with in this Appeal is whether the court was justified in declining to set aside the order for dismissal. I must point out that such an order is discretionary. Therefore, unless the court failed to properly exercise its discretion, this court cannot exercise jurisdiction. In the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
- The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123, where the law looks in their usual gusto, held by as follows; -
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
- The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.
- In the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
- The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows: -
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.”
- In Fidelity & Commercial Bank Ltd V Kenya Grange Vehicle Industries Ltd (2017) eKLR, the Court of Appeal, Ouko, Kiage and Murgor JJA held as doth: -
“Courts adopt the objective theory of contract interpretation and profess to have the overriding aim of giving effect to the expressed intentions of the parties when construing a contract. This is what sometimes is called the principle of four corners of an instrument, which insists that a document's meaning should be derived from the document itself, without reference to anything outside of the document (extrinsic evidence), such as the circumstances surrounding its writing or the history of the party or parties signing it.”
- There were no witnesses. We thus are at the same pedestral as the primary court. Dismissal, can be done even where there are no provisions for dismissal. In the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 In cases falling outside the specific provisions quoted above. Farrel, J., adopted this view. Dalton, J., in Saldanha’s case purported to follow the decision of Windham m C.J. in Mulji v Jadavji, [ 1963] EA. 217, but all that case decided was that the courts inherent jurisdiction could not be invoked where an l alternative remedy had been available. In the instant case, it is clear that none of the specific provisions for dismissing suits applied to the suit the subject of this appeal. That being so, I do not see how the courts inherent jurisdiction can be said to be fettered, as no alternative remedy existed.
- The suit herein was filed in 2016; a period of 8 years. The Appellant did nothing till 2019 when he woke up to extend summons to enter an appearance. Nothing useful transpired till dismissal. The matter was in the cause list published at Kenya Law.
- The Respondent appears not opposing the Application for reinstatement. This was erroneous belief that case belong to parties. A case is an amalgam of interests. Costs have the greatest stake in conclusion of matters. Order 17 rule 2 provides for automatic lapse or dismissal of the case. It provides as doth: -
“2. Notice to Show cause why suit should not be dismissed
- 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.
- If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit.
- Any party to the suit may apply for its dismissal as provided in sub-rule 1.
- The court may dismiss the suit for non-compliance with any direction given under this Order.
- A suit stands dismissed after two years where no step has been undertaken.
- a party may apply to court after dismissal of a suit under this order.”
- The matter was dismissed on the court’s own motion. There was absolutely no explanation. The explanation given for delay was not supported by evidence. The fix that the advocate was searching for his client, ipso facto shows the client has lost interest.
- In any case the suit already stood dismissed for inaction for more than 2 years. The court was simply helping to topple a dead suit. I have looked at the subject matter and note that the Appellant will not suffer irreparable harm if the suit remains dismissed.
- Some of the explanations for delay given did not take into consideration the fact that courts are not manned by morons who will take every explanation and swallow the same hook, line, and sinker. It is these kinds of postulations that CB Madan, J (as he then was) had in mind when in N vs. N [1991] KLR 685 when he expressed himself in the following terms:
“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”
- Surely how can a plaintiff take over 6 years without moving the court and blame travels in budgeting for time, handling court cases should be top priority, at least one in 365¼ days. The courts are not places to place cases, go do other useful things and come back at you own pleasure or wait for Armageddon to rain brimstone and tar. Cases must be expedited or else they will be dismissed.
- In the case of George Gatere Kibata v George Kuria Mwaura & another [2017] eKLR, Justice Eboso stated as doth: -
“9. Besides the legal framework set out in Order 17 Rule 2, the guiding criteria to be applied in considering whether or not a suit should be dismissed for want of prosecution has been articulated and settled in a number of leading authorities, among them, the case of Ivita -vs- Kyumbu (1984) KLR 441 where it is summarized as follows:
“The test is whether the delay is prolonged and inexcusable and, if it is, can justice be done despite such delay.”
- In Mwangi S. Kimenyi -vs- Attorney General and Another, Civil Suit Misc. No. 720 of 2009, the court restated the test as follows: -
- When the delay is prolonged and inexcusable, such that it would cause grave injustice to the one side or the other or to both, the court may in its discretion dismiss the action straight away. However, it should be understood that prolonged delay alone should not prevent the court from doing justice to all the parties- the plaintiff, the defendant and any other third or interested party in the suit; lest justice should be placed too far away from the parties.
- Invariably, what should matter to the court is to serve substantive justice through judicious exercise of discretion which is to be guided by the following issues; 1) whether the delay has been intentional and contumelious; 2) whether the delay or the conduct of the Plaintiff amounts to an abuse of the court; 3) whether the delay is inordinate and inexcusable; 4) whether the delay is one that gives rise to a substantial risk to fair trial in that it is not possible to have a fair trial of issues in action or causes or likely to cause serious prejudice to the Defendant; and 5) what prejudice will the dismissal cause to the Plaintiff. By this test, the court is not assisting the indolent, but rather it is serving the interest of justice, substantive justice on behalf of all the parties.”
- The Appeal was not opposed. However, the Appellant still has the burden of proof and the responsibility to show that the delay was not inordinate, not inexecusable and will not prejudice a fair hearing. I find that 6 years delay is inordinate and the reasons given are an afterthought.
- In the case of Utalii Transport Company Limited & 3 others vs NIC Bank Limited & Another (2014) eKLR Francis Gikonyo J. stated as follows:
“… I will discern the principles which the law has developed to guide the exercise of discretion by Court in an Application for dismissal of suit for want of prosecution. These principles are:
- Whether there has been inordinate delay on the part of the Claimants in prosecuting the case;
- Whether the delay is intentional, contumelious and, therefore, inexcusable;
- Whether the delay is an abuse of the Court process;
- Whether the delay gives rise to substantial risk to fair trial or causes serious prejudice to the Respondent;
- What prejudice will the dismissal occasion the Claimant;
- Whether the Claimant has offered a reasonable explanation. for the delay;
- Even if there has been delay, what does the interest of justice dictate: lenient exercise of discretion by the Court.”
- All factors considered, the delay is so inordinate that no amount of leniency will suffice. The court below was correct in exercise of discretion. The record of proceedings are admirable. Nothing transpired from the date of filing until 18/3/2019. An application was dealt with on 24/4/2019. Dismissal happened on 9/9/2021. the application for reinstatement was argued unopposed on 11/5/2023 and ruling on 2/6/2023.
- Except the order for costs, the court below was correct. The Appeal herein lacks merit and consequently dismissed. I note however, the court below granted costs to the Respondent. They were not opposed to the Application. The proper order was that each party bear its costs for that Application.
- The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -
“[18] It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or Respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.”
- In this case there was no successful party for the impugned application dated 17/4/2023. The proper order was then that each party to bear their costs.
- This will equally apply to the Appeal. Each party should bear their own costs.
Determination
- The upshot of the foregoing is that I make the following order; -
- I set aside the order granting the Respondent costs for the Application each party should bear their own costs for the Application dated 17/4/2023. However, the said Application shall stand dismissed but with no order as costs.
- Save as aforesaid this Appeal lacks merit and is accordingly dismissed with no order as to costs.
- The files in this court and the court below is closed
DELIVERED, DATED and SIGNED at Nairobi on this 22nd day of March, 2024. Judgment delivered through Microsoft Teams Online Platform.
In the presence of:-
Ms Namai for the Appellant
Ms Mamburi for the Respondent
Court Assistant - Kimoine