Elizaphan Makori Siringi v Samson Mamwacha & 1 other

6. The appeal was admitted by the court under section 79 of the CPA on 10th April 2019. The following day,11 th April, 2019, a Notice to both parties notifying them of the admission and requiring compliance with Order 42 Rule 13, and to fix the matter for directions was issued. This is where the crux of the problem seems to have arisen, as there is no evidence that the notice requiring parties to fix the matter for directions was served on the parties. The appellant, whose counsel operates from Nairobi, submitted that he received no such notice. 7. The Notice to Show Cause, subject of this ruling, followed dated 4 th June, 2019, and a Notice of a hearing mention to show cause dated 13th January, 2020 was issued. Although again there is no evidence of service of the mention Notice for the NTSC, the appellant responded to it by way of a Replying Affidavit filed on 28 th January, 2020. In essence, the appellant’s affidavit and submissions explain that he was surprised to receive a NTSC from the Court dated 4 th June, 2019 when in fact he had filed the record of appeal on 12 th February, 2019 and had never received any indication that it had been admitted under section 79 CPA. He submits that the NTSC is premature. 8. On their part, the respondents support the dismissal, and urges that the appellant is seeking to shift blame on the court, since he did not demonstrate having pursued the typed proceedings which were done on 2 nd March 2017. 9. As I have already indicated, under Order 17 Rule 2 the court may give notice in writing to the parties to show cause why the suit should not be dismissed only if in any suit, no application has been made or step taken by either party for one year. In the present case, there is no doubt that the court admitted the appeal on 10 th April, 2019. Accordingly, the Court Registry erred in issuing a NTSC on 4 th June, 2019, only two months later 10. Accordingly, I am satisfied that the NTSC was improperly issued, and is hereby vacated. I am alive to the fact that the substantive appeal is against a lower court Ruling of Hon P Gesora, Chief Magistrate, dismissing the plaintiff’s suit for want of prosecution of the substantive suit issued on 30th September, 2016. That suit was filed ten years ago on 14th June 2010. Directions are therefore issued as follows: a. That the appellant do file and serve their written submissions on the substantive appeal within seven (7) days from the date hereof. b. The respondent to file submissions in response within seven (7) days from the date of being served. c. There shall be no need for highlighting of submissions and the file to be r brought before the Judge for determination within twenty-one (21) days from the date hereof. d. There shall be no extension of time for either party. e. All filings to be in soft form in word format f. Submissions shall not exceed three (3) typed pages in regular 12 point size font or larger. Administrative directions 11. Due to the current inhibitions on movement nationally, and in keeping with social distancing requirements decreed by the state due to the Corona-virus pandemic, this Judgment has been rendered through Zoom/Teams video/tele-conference with the consent of the parties noted hereunder, who were also able to participate in the conference. Accordingly, a signed copy of this judgment shall be scanned and availed to the parties and relevant authorities as evidence of the delivery thereof, with the High Court seal duly affixed thereon by the Deputy Registrar/Executive Officer, Naivasha. 12. A printout of the parties’ written consent to the delivery of this judgment shall be retained as part of the record of the Court. 13. Orders accordingly Dated and Delivered via videoconference at Nairobi this 9th Day of July, 2020 RICHARD MWONGO JUDGE Delivered by video-conference in the presence of: 1. Mr Mageto for the Appellant 2. F I Mburu for the Respondent 3. Court Clerk - Quinter Ogutu

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