[2023] KEHC 26103 (KLR)

Aamrin t/a Amin Automotive Supplies v Mwangi (Miscellaneous Civil Application E285 of 2023) [2023] KEHC 26103 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26103 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Civil Application E285 of 2023

HM Nyaga, J

November 30, 2023

Between

Fathima Aamrin T/A Amin Automotive Supplies

Appellant

and

Daniel Maina Mwangi

Respondent

Ruling

1. The applications before me are;The Notice of Motion dated 30th August 2023, brought under Sections 1A, 1B, 3 3A and 65(b), 79G and 95 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules. It seeks the following orders;1. That this application be certified urgent and heard ex-parte in the first instance.2. That a stay of execution of the Decree and/or Order of 16th June, 2023 issued in this matter do issue pending hearing and determination of this application.3. That this honourable court be and is hereby pleased to grant the Applicant leave to lodge an appeal from the judgment and decree in Molo Civil Suit Number E283 of 2022 delivered on 12th June 2023, out of time.4. That this honourable court be pleased to allow the leave as granted to operate as a stay of execution of the Decree and/or Order of 16th June, 2023 issued in the trial court pending hearing and determination of these proceedings and the appeal.5. That costs of this Application be provided for.

2. The Notice of Motion dated 29th September,2023 filed by the Applicant. It is brought pursuant to Sections 1A, 2A & 3A of the Civil Procedure Act, Order 21 Rule12, 45, 51 of the Civil Procedure Rules, 2010 and Article 159 of the Constitution. The Application seeks the following orders: -1. Spent2. That this court do vary and extend the compliance order issued on 1st September,2023 which is due on 30th September,20233. That in addition to the above, the conditional deposit be wound/revised downwards to an affordable sum.4. That in the alternative, this court be pleased to order that payment of the decretal sum by the Applicant be postponed or be made by installments, without interest.5. That the court be pleased to substitute the present conditional stay with an alternate security consideration in a title deed towards compliance.

3. The two Applications are premised on grounds on their face and supported by the Affidavits of the Applicant Fathima Aamrin.

4. In a nutshell, in respect to the first application, the applicant states that she has an intention to appeal against the decision of the Molo Chief Magistrates Court Civil suit No. E283 of 2022. That the appeal is arguable as it raises triable issues with a likelihood of success. She went on to state some of the grounds in the intended appeal.

5. The applicant further states that the failure to attend court for delivery of the judgment on 12th June 2023 was an as a result of misdiarisation of the date as 12th July 2023. That subsequently the applicant proceeded to file an application to seek stay of execution for unlawful attachment, which was withdrawn pending negotiations between the parties. That the period granted for the said negotiations was about to lapse without an agreement and the applicant was apprehensive that the respondent would execute the decree in the lower court.

6. In respect to the second application, it was the Applicant’s case that vide a court order dated 5th September,2023 this court granted her conditional stay to deposit Ksh. 2,712,997/= in court within 30 days. She stated that she has been unable to raise the full-prescribed amount within the constricted period due to harsh economic times but indicated that she is willing and ready to settle the same if given time. She contended that she is willing to deposit the available sum of Ksh. 400,000/= with the condition that she be allowed additional time to source for more funds.

7. She is apprehensive that the defendant will proceed with the execution of the decree if the said orders of 5th September,2023 are not varied or extended as he had previously tried to enforce a decree dated 16th June,2023 through Desire Auctioneers. She is willing to comply with any other alternative orders towards prosecution of the Appeal that this court will issue.

8. In response to the first application, the respondent filed the grounds of opposition dated 25th September 2023. It is argued that the applicant is not entitled to the orders as she brought the application after inordinate delay. That the application is an afterthought, misconceived, mischievous, in bad faith frivolous and vexatious. That the application is meant to deny the respondent the fruits of the judgment in the lower court.

9. The respondent further states that to safeguard the respondent’s interests the applicant ought to pay 50% of the decretal sum and the balance be deposited in a joint interest earning account.

10. The respondent further states that the application fails to meet the threshold of the test laid down for seeking stay of execution.

11. In opposition to the second Application, the Respondent filed grounds of opposition dated 3rd October,2023. It is stated that the Application offends provisions of Order 2 Rule 15 of the Civil Procedure Rules, 2010 and ought to be struck out as it is scandalous, frivolous and vexatious; it may prejudice, embarrass or delay the fair trial of the action; and is an abuse of the court process. That the Application is an afterthought, misconceived, mischievous and in bad faith.

12. The respondent further states that having not deposited any part of the Decretal sum in court as directed, the prospective Appellant/Applicant has no audience before this court. That equity demand that she or he who seeks it must do equity. That deposit of an undisclosed title deed is an unsafe form of security. That no sufficient grounds have been proffered by the Respondent to warrant review/varying of the order of this Honourable Court issued on 5th September,2023. THAT the application is inviting this Honourable Court to deny the Respondent his fruits of judgement in Molo CMCC NO. E283 OF 2022. That to safeguard against the Respondent being denied his fruits of judgement, this honourable court ought to direct the Appellant/Applicant to remit half of the Decretal sum to him, whilst the remaining half is deposited in a joint interest earning account. That the Application dated 29th September,2023 as drawn and taken out has not satisfied the test laid out for consideration of application seeking stay of execution pending appeal.

13. The Applicant swore a further affidavit on 6th October,2023. She prayed to pay the decretal sum in installments and in support of her prayer for an alternative security, she attached a copy of title deed of Land PARCEL No. NJORO/NGATA BLOCK 1/095 registered in the name of David Mwangi Muya whom she deponed that he had agreed to stand in as surety on her behalf.

14. She also attributed her inability to raise the prescribed conditional deposit within the constricted time, owing to payment of medical bills of her ailing mother who was taken for treatment in India.

15. The Application was canvassed through written submissions.

Applicant’s Submissions 16. The Applicant submitted on two issues;i.Whether the Applicant has fulfilled the conditions for review.ii.Whether the Applicants should be allowed to offer alternative security or pay in installments or deposit of Ksh. 400,000/=iii.Who shall bear the Costs of this application.

17. On the first issue, the Applicant referred to Section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules,2010 and Republic vs Public Procurement Administrative Review Board & 2 others [2018] eKLR & Pancras T. Swai v Kenya Breweries Limited [2014] eKLR which discussed the grounds for review and the case of Republic vs Advocates Disciplinary Tribunal Exparte Apollo Mboya [2019] eKLR which sets out the principles to guide court on review.

18. The applicant then argued that she has filed this Application with regard to the third limb being that of any other sufficient reason.

19. She also argued that she has moved without unwarranted delay and she is willing to abide by any condition that may be set forth by this Honorable Court, and therefore she has satisfied the conditions for grant of stay. She relied on the case of John Odongo vs Joyce Irungu Muhatia [2015] eKLR for the proposition that the issue of security need not be the physical deposit of money but the preparedness as well as readiness to provide security.

20. With regard to the second issue, the Applicant submitted that the court has inherent power to grant the orders for alternative security and she has shown she has a cash flow challenge brought about by the tough economic times and ailing loved one.

21. She posited that the Respondent will not suffer prejudice if the orders sought are granted since he will have the security deposited in court. In support of her submissions, she relied on the case of John Mbaya Mucheke vs Kaberia E Limukii [2020] eKLR where the court upon considering that the applicant had positively showed that he had cash flow challenges and offered security valued nearly one and a half times more of the decretal sum reviewed its subject orders.

22. On costs, she prayed that the same do abide the outcome of the Appeal. She relied on the case of Synresins Limited vs Pravin Vora T/A Vora Construction [2016] eKLR in support of her submission.

Respondent’s Submissions 23. On whether the Applicant has met conditions for grant of stay of execution, the Respondent referred to the case of Vishram Ravji Halai vs Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365 where the court outlined the conditions to be satisfied before stay of execution is granted and submitted that the Applicant has not met any of the above conditions.

24. Regarding substantial loss, the respondent submitted that the Applicant was paid the sum of Ksh. 2,450,000/= by the respondent and the respondent having paid the same ,lost his motor vehicle in a bid to forestall more losses on account of loan to Ngao Credit Limited. He argued that the Applicant intends to have her cake and eat it and that this court should aid her in this regard. He relied on the case of Machira t/a Machira & Co Advocates vs East African Standard [2002] eKLR for the proposition that substantial loss must be specific and detailed as it is not enough to merely state that substantial loss will result or that if the appeal will be successful it will be rendered nugatory if stay is not granted.

25. On security, the Respondent submitted that it behooves any reasonable person to make provisions for any claim emanating from the suit to make a reasonable provision as regards the same, particularly where the said defendant opts not to file any counterclaim.

26. He argued that to claim extraneous issues/matters as a reason for not being in a position to deposit the security in court is as escapist as it comes. He contended that the Applicant’s purported illness was a fact well known to the Applicant.

27. He posited that agreeing to the swap of the security, would open the Pandora’s Box, which may end up being as Schrodinger’s paradox.

28. He argued that the Applicant has not offered any security. In support of his submissions, he relied on the case of Charles N. Ngugi vs ASL Credit Limited [2022] eKLR for the proposition that Order 42 Rule 6 requires the provision for security as a precondition for allowing a request for stay of execution.

29. Citing the case of Butt vs Rent Restriction Tribunal (1982) KLR 417 where court gave guidance on how the court should exercise discretion, the respondent submitted that in absence of security or even attempt to it, this court should not exercise its discretion in favour of the Applicant.

30. According to the respondent, this application has been filed with unreasonable delay considering all the applications on records were filed at the very tail end.

31. The respondent also submitted that the overriding objectives tilts in his favour as the applicant is employing delaying tactics in this matter with intent of denying him his fruits of litigation.

32. The Respondent submitted that the Applicant has proffered no grounds for review. According to him, the applicant knew her financial position and ought to have known her would be surety yet she bothered not to avail this information. He stated that the purported cheque of Ksh.400, 000/= is blank and simply a blank cheque thus a useless paper unworthy its value.

33. He stated that there are no accompanying accounts statements save for ostensible grab-shots of Mpesa statements to persons unknown to them and to this court, and whose veracity and authenticity is suspect at best. He believed the applicant’s strategy is to appeal to this court’s empathy to take the longest route in a bid to defeat his decree. He wondered why the Applicant did not attach her business accounts as a proof thereof.

Analysis and Determination 34. I have carefully considered the applications, the grounds of opposition as well as the written submissions filed herein by the Respective parties. In my view, the only issue for consideration is whether the Applicant is entitled to the reliefs sought.

35. The two applications both sought stay of execution so that ground will be dealt with concurrently.

36. I also note that while there were two applications, the applicant only submitted on the second application. The respondent addressed both applications.

37. The outstanding issue in the first application is whether the applicant has laid sufficient grounds for the grant of leave to appeal out of time.

38. Section 79G of the Civil Procedure Rules provide for leave to appeal out of time. It reads as follows;“Time for filing appeals from subordinate courts.Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”The principles adopted by the court in determining such an application were enunciated in Leo Sila Mutiso vs Rose Hellen Wangari Mwangi, the Court of Appeal held that:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.”The question is, has there been inordinate delay in making this application and if so has there been sufficient reason fronted by the applicant to explain the delay?As to what amounts to unreasonable delay counsel referred the court to the case of Nzoia Sugar Company Limited vs W Kenya Sugar Limited (2020) eKLR where the court held as follows -“On whether the delay is inordinate or inexcusable the court in Mwangi S. Kimani vs The Attorney General and another(supra) considered what constitutes inordinate delay and said as follows;There is no precise measure of what amounts to inordinate delay. Inordinate delay will differ from case to case depending on the circumstances of each case, the subject matter of the case, the nature of the case, the explanation given for the delay and so on and so forth. Nevertheless inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore inexcusable. Therefore inordinate delay for purposes of dismissal for want of prosecution should be one which is beyond excitable limits In the prosecution of cases .”

39. It is not in dispute that the judgment in question was delivered on the 12th June 2023. The applicant states her advocates noted the date as 12th July 2023. That she only became aware of the judgment when auctioneers went to attach her property. She then filed the present application.

40. In Belinda Muras & 6 others vs Amos Wainaina (1978) Madan J.A. stated as follows ;“A mistake is a mistake. It is no less a mistake because it is an unfortunate step. It is no less pardonable because it is committed by senior counsel though in the case of junior counsel the court may might feel compassionate more readily . A blunder on a point of law can be a mistake. The door of Justice is not closed because of a mistake has been made by a lawyer of experience who ought to know better . The court may not condone it but ought certainly to do whatever is necessary to rectify if the interests of justice so dictate .’

41. In my view the period in question is not inordinately long. It is just two months. The reason is sufficiently explained.

42. The applicant has a right to pursue the intended appeal. Even though she did not annex the draft memorandum of appeal, she has disclosed them in her application.

43. I will therefore allow part of the application dated 30th August 2023 and grant the applicant leave to appeal out of time. I will give further directions later.

44. Let me now turn my attention to the second application.

45. Section 80 of the Civil procedure Act provides that: -“Review:Any person who considers himself aggrieved: -(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act,may apply for a review of judgment to the court which passed the decree or made the order and the court may make such order thereon as it thinks fit.”

46. Under Order 45 Rule 1 of the Civil Procedure Rules:“Application for review of decree or order [Order 45, rule 1. ](1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.”

47. From the above provision, a court can only review its orders if the following conditions exist or are fulfilled:“(a)There must be discovery of a new and important matter which after the exercise of due diligence, was not within the knowledge of the applicant at the time the decree was passed or the order was made; Or(b)There as a mistake or error apparent on the face of the record; or(c)There were other sufficient reasons; and(d)The application must have been made without undue delay.”

48. This court vide an order issued on 5th September,2023 granted stay of execution on grounds that the Applicant do deposit Ksh. 2,712,997 in court within 30 days.

49. Before the conditional stay of execution could lapse, the Applicant filed the instant Application seeking review and or variation of the above orders on grounds that she will be unable to comply within the prescribed period due to harsh economic times and further debts she has incurred in paying for medical expenses of her ailing mother.

50. She has asked this court to allow her pay the decretal sum in installment or substitute the said orders with the deposit of the original title deed of Lad Title Number NJORO/NGATA BLOCK 1/1095 registered in the name of Daniel Mwangi Muya as an alternate security.

51. The Respondent has dismissed the applicant, and claimed that the deposit of an undisclosed title deed is an unsafe form of security. He questioned the relationship between the Applicant and Daniel Mwangi Muya and how the Applicant came about the said title deed, considering the said Mr. Muya has not deposed any affidavit. He also questioned why the Applicant did not attach her business accounts as a proof that her business was facing hard economic times. He posited that the grab-shots of Mpesa statements are to persons unknown to him and to this court, and that their veracity and authenticity is suspect at best.

52. I do find the Applicant’s argument unconvincing and unsatisfactory. Despite the Applicant citing financial difficulties she has failed to issue court with any further details of the financial loss. Without proof of the financial constraints that the Applicant has faced in raising the security ordered, this court is unable to make a finding on those allegations. The Applicant has also attached Mpesa screenshots as proof that she has been paying for her mother’s medical expenses. The said screenshots do not show when those payments were made since no date has been indicated therein. There is also no concrete evidence advanced to show that one Mrs Farhad Begum is the mother of the Applicant.

53. The purpose of security for costs as provided by Order 42 Rule 6 of the Civil Procedure Rules is to guarantee the due performance of such decree or order as may ultimately be binding on the Defendant/Applicant.

54. The alternative security proposed by the Applicant presents several problems. Firstly, the land in question does not belong to the Applicant and owner of the same has not sworn any affidavit to ascertain that he has agreed to stand as surety for the Applicant. Secondly, there is no valuation report to authenticate its value.

55. In the case of Arun C Sharma vs Ashana Raikundalia t/a A Raikundalia & Co Advocates & 2 others [2014 eKLR Gikonyo J stated;“The judgement is like a debt hence the applicants become and are judgement-debtors in relation to the respondent. This is why any security given under Order 42 Rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree of order as may ultimately be binding on the applicants. I presume, the security must be one which can serve that purpose. When one imagines, if it becomes necessary, the steps required to be taken for such security being offered to be realized by the decree holder, it becomes absolutely clear that mere affidavit by the owner does not convert the said property into any legally binding security for the due performance of such decree or order as may ultimately be binding on the applicant. I, therefore, hold that the security offered is not suitable for purpose of Order 42 Rule 6 of the CPR. The court should always remember that both the applicants and the respondents have rights. The applicant has a right to his appeal and the prospects that it shall not be reduced to pious aspiration or barren results if they pay out the decretal sum to a person who may not make a refund. The respondent, on the other hand, has a right to the fruits of its judgment which should not be taken away; and where the right is postponed, it can only be upon adequate security for the due performance of such decree or order as may ultimately be binding on the applicant. There is no legally binding assignment for the proprietary rights in the proposed security which the court may consider adequate for secure the due performance of such decree or order as may ultimately be binding on the applicant.”

56. The case of John Mbaya Mucheke vs Kaberia E Limukii (supra) cited by the Applicant, do not aid her case. The facts of this case are distinguishable from the facts herein, in that unlike the present case, the Applicant therein proved the land belonged to her, that she had cash flow challenges and adduced a valuation report of the subject land.

57. In view of the foregoing, I find the Application dated 29th September 2023 in terms of prayers 3,4 and 5 lacks merit and I proceed to dismiss them.

58. In the end I order as follows:-a.The applicant to file and serve the memorandum of appeal within the next 21 days. Directions on the appeal will be given once the appeal is filed.b.In the interest of justice, I extend the time for compliance with the orders of depositing the decretal sum as ordered by another 30 days from the date of this ruling. In default thereof, the respondent shall be at liberty to execute.c.The costs of both applications shall be borne by the applicant.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 30TH DAY OF NOVEMBER, 2023. H. M. NYAGAJUDGEIn the presence of;C/A KipsugutMr. Mwaniki for RespondentN/A for Applicant