[2022] KEHC 10827 (KLR)

Ahenda & another v Ongongo (Miscellaneous Civil Cause E017 of 2022) [2022] KEHC 10827 (KLR) (14 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10827 (KLR)

Republic of Kenya

In the High Court at Siaya

Miscellaneous Civil Cause E017 of 2022

RE Aburili, J

June 14, 2022

Between

John Okoth Ahenda

1st Applicant

Hellen Owino

2nd Applicant

and

Helida Odhiambo Ongongo

Respondent

Ruling

1. This Ruling determines the application dated 25th March, 2022 filed under Certificate of urgency on 17/5/2022 by the applicants John Okoth Ahenda and Hellen Owino.

2. In the said application, the applicants seek the follow orders:1. spent, not certified as urgent.in the first instance.2. That this Honourable court be pleased to grant stay of execution of the judgments of this Honourable court (sic) delivered on 25th January, 2022 herein pending the hearing and determination of this application interpartes;3. That this Honourable court be pleased to grant stay of execution of the Decree in respect of the orders and judgment of this Honourable court delivered on 25th January 2022 entered herein pending the hearing and determination of this application.4. That this Honourable court be pleased to allow the applicant to appeal the judgment in Ukwala PMCC No. 21 of 2020 on 25th August 2021 out of time;5. That this Honourable court be pleased to order a stay of execution of the judgment delivered on 25th January, 2022 pending the hearing and determination of the intended appeal.6. That the costs of this application be provided for.

3. The application by way of Notice of motion is premised on 16 grounds on the face of the application as well as the supporting affidavit sworn by Mr. Hemstone Owino advocate on 25th March 2022.

4. The grounds and the averments and depositions in the supporting affidavit are all the same.

5. According to the applicants, judgment was entered in favour of the Respondent who was the Plaintiff in the lower court on 25/1/2022, which decision the applicants were aggrieved by and now they intend to appeal against.

6. That on 25th March 2022, the applicants requested in writing to be supplied with a copy of the said judgment to enable them make an informed decision and or give further instructions on the same.

7. That on the 25th January 2022, the applicants’ counsel had made an oral application for a copy of the said judgment hence the letter of 25/3/2022 was only a follow up.

8. That the Respondents are threatening to execute decree to recover the awarded sum as per the letter dated 8/4/2022 hence the prayer for stay of execution pending appeal as intended, as the applicants will suffer irreparable and or substantial loss if the stay is not granted.

9. That the appeal as intended raises triable/arguable issues for determination and that unless stay is granted, the same will be rendered nugatory as it has high chances of success.

10. The applicants further aver that they are apprehensive that if the Respondent is paid the decretal sum, she will not be in a position to refund the same should the appeal succeed.

11. Further, that the appeal would be expedited and that applicants are willing to furnish security for satisfaction of the decree in favour of the Respondents in the nature of an insurance bond.

12. It was further deposed that the application had been brought without any inordinate delay and that no prejudice will be occasioned to the Respondent if the orders sought are granted and finally, that it is in the interest of justice that the orders sought are granted.

13. The application which was filed on 17/5/2022 was placed before me under Certificate of urgency on 18/5/2022 but I declined to certify the same as urgent. I directed the applicant’s counsel to serve the Respondent’s counsel for interpartes consideration on 13/6/2022, which was yesterday.

14. Both parties’ counsel appeared with Mr. Okoth Oluoch Advocate appearing for the applicants while the Respondent was represented by Mr. Omondi advocate. The application was argued orally. Mr. Omondi advocate for the Respondent informed the court that he relied on the Replying affidavit filed on 8/6/2022 sworn by counsel himself Mr. Francis Omondi.

15. However, upon perusal of that ‘affidavit’, which comprises 12 paragraphs and undated, I find that the same is not sworn before any Magistrate or Commissioner for Oaths. It is just signed by Mr. Omondi advocate.

16. On that account alone, I find that the Respondent did not file any affidavit opposing the application dated 25/3/2022 as an ‘affidavit’ that is unworn is no affidavit at all. The same is hereby struck out and expunged from the record.

17. I shall therefore proceed to determine the application dated 25/3/2022 on the basis of the grounds, supporting affidavit and oral submissions tendered by the applicants’ counsel and any points of law that were raised in the oral submissions made by Mr. Omondi advocate for the Respondent.

18. According to the applicants’ counsel and reiterating the grounds and supporting affidavit, judgment was delivered on 25/1/2022 and that he sought for copies of proceedings and judgment orally on the same date, to peruse and seek for instructions on the way forward. That he also obtained a temporary stay and he later on 22/3/2022 obtained instructions from his clients’’ to appeal against the judgment and on 25/3/2022, he wrote to the court seeking for the proceedings and judgment to be supplied but that the same was never supplied.

19. On 8/4/2022 the Respondent’s counsel wrote to the applicants’ counsel asking for settlement of the decree as the period for stay had lapsed a while ago.

20. The annexure H00 4b shows that on 4/4/2022, a letter was written to court via email referring to the letter of 25/3/2022 for the proceedings but no response was received.

21. Annexture H00-2 is an invoice dated 4/4/2022 from Ukwala Law Courts for Kshs. 1,000/= for request for copies of proceedings and judgment. I have perused the court record herein and I find no evidence that the said proceedings and judgment as requested and invoiced for on 4/4/2022 were paid for or at all, as there is no such annexture. An invoice is NOT a receipt by any standards and as per paragraph 5 of the supporting affidavit, Annexture H00-2 is “copy of invoice for the said payment”. No receipt is attached for the payment as courts are now paperless in court fees payment and parties make requests, they are invoiced after assessment of appropriate document, upon which they pay before any action can be taken. For example, the application dated 25/3/2022 was invoiced on 17/5/2022 and a receipt issued on the same date for Kshs. 3,750.

22. It follows that the applicants cannot hoodwink this court into believing that they paid for the requested for copies of proceedings and judgment but that the same were never supplied by the trial court hence the delay.

23. Mr. Omondi submitted that the delay is inordinate. Indeed, Courts are implored to administer justice without undue delay. That is the only point of law I gathered from Mr. Omondi’s submissions as the other submissions were anchored on an affidavit which was unsworn and which I have struck out an expunged from the court record.

24. Therefore, the issue for determination is whether the applicants have satisfied this court that they are entitled to the two prayers sought being, leave to appeal out of time and secondly, whether the court should grant stay of execution of decree in the lower court pending an intended appeal.

25. Section 75G of the Civil Procedure Act provides that an appeal from the subordinate court to the High Court shall be filed within 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.

26. From the application before this court dated 25/3/2022, it is undisputed that the judgment sought to be impugned was delivered on 25/1/2022. The prayer No. 4 of the Notice of Motion cites Ukwala PMCC No. 21/2022 whereas the annextures cites Ukwala SRM CC No. E13/2020 and all other annextures including communication from the respondent/plaintiff’s counsel refer to SRM CC no E13 of 2020. From my perusal of the documents on record, I am satisfied that the reference in prayer No. 4 of the Notice of motion was a typing error citing CC No. 21 of 2022 instead of CC No. E13 of 2020 which the applicant’s counsel sought to correct by his submissions. An appeal ought to have been filed in this court by 1st of March, 2022 as February had 28 days.

27. The applicants then claim that they sought for stay and copies of proceedings and judgment on the date of judgment and later their counsel followed up with a letter leading to the invoice of 25/3/2022, which I have found, was never paid for/settled to enable the court supply the judgment and proceedings. The written request for proceedings and judgment was made after the 30 days’ time for filing of an appeal had lapsed. The instructions to appeal were also given to the advocate after the time for filing of the said appeal had lapsed.

28. Since there was no court fees paid for the proceedings applied for, this court cannot, on the face of it, make a finding that the trial court delayed in supplying to the applicants the proceedings and judgment requested for.

29. However, this court supervises Ukwala Law Courts and is very much alive to the challenges that the said court has had in the recent past on typing of court proceedings. I am aware that the only secretary serving that court was involved in an accident towards the end of 2021. She stayed at home most of the time and she was eventually transferred to another court station without a replacement being send immediately and to date, that challenge still persists. This court had to intervene and ask the Head of Station for Ukwala Law Courts to submit to the High Court some files for typing by my Secretary, assisted by the Secretary for the ELC Judge and the only Secretary serving the Magistrates’ courts at Siaya Law Courts, in order to reduce the backlog of pending files for typing of proceedings and submissions to the High Court and Environment & Land Court on appeal for disposal of the said appeals. I therefore take judicial notice of the shortage of the specialized staff at Ukwala Law Courts which has contributed to the delays in disposal of appeals filed to this court during the said period. I am equally aware of the requests made to the Chief Registrar of the Judiciary for more staff to be posted to that station.

30. For the above reasons, which is well known to this court, I find that the delay in obtaining proceedings and judgment from the lower court at Ukwala is not inordinate and even if that were to be the case, then there is reason for that inordinate delay.

31. It follows that no party should be made to suffer because of the shortage of specialized judicial staff to undertake the tasks of typing proceedings. Neither is the court to blame for that delay as it cannot supply to the parties untyped and uncertified proceedings. I therefore give the applicants herein the benefit of doubt and hold that despite the delay, justice can still be done, by according them an opportunity to ventilate their grievances on appeal where the Respondent will also have the opportunity to challenge the merits of the appeal as intended.

32. For the above reasons, I hereby grant to the applicant leave to appeal out of time from the judgment and Decree in Ukwala SRM CC No. E13/2020.

33. The intended appeal shall be filed and served within the next 30 days from today and in default, the orders extending the period for appeal shall lapse.

34. On whether the applicants deserve the order for stay of Execution of decree in the Ukwala SRM CC E13/2020 pending the filing, hearing and determination of the intended appeal, the applicable law is Order 42 Rule 6(2) of the Civil Procedure Rules which provides for the conditions for grant of stay of Execution of decree pending appeal in the following terms:6(1)…“(2) No order for stay of execution shall be made under sub rule(1)unless -a.the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; andb.such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

35. The above provisions give this court and the trial courts discretion to stay execution of decrees pending appeal. The first condition for grant of stay is a demonstration to the satisfaction of this court that substantial loss may result to the applicant unless the order for stay is made.

36. I have considered arguments by the applicants’ counsel, and perused the draft Memorandum of appeal. The same is not frivolous on the face of it. The applicants also submitted that they stand to suffer irreparable loss as the Respondent will not be in position to refund the decretal sum should the appeal which is arguable, be successful. The Respondent has not filed any affidavit of means to counter the above averment.

37. In JMMV PM[2018]eKLR cited by this court in.It was held that:“As I said, I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given. Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause”.

38. The decree is a monetary one and therefore the question that the appeal being successful shall be rendered nugatory is neither here nor there as it has not been demonstrated that the Respondent is so impecunious that if paid the decretal sum, the same cannot be refunded should the appeal be successful.

39. The applicants have also not disclosed in pleadings or affidavit the amount of the decretal sum which they claim was manifestly excessive, in the draft Memorandum of appeal.

40. For the above reasons, I find the first condition for stay has not been satisfied by the applicants.

41. On whether the application has been made without unreasonable delay, the applicants aver that they first sought for stay of execution of decree on the date of delivery of the judgment by the lower court. That they also sought for copies of proceedings and judgment. The stay lapsed hence the letter of 8/4/2022 by the Respondent’s counsel asking for settlement of the decree in seven days.

42. I have already pronounced myself on the delay in obtaining copies of proceedings and judgment from Ukwala Law Courts and the measures this court has taken to remedy the situation at Ukwala Law Courts.

43. I therefore find that the application was not made with inordinate delay as the delay if any is explained away and is acceptable to this court and is not unreasonable.

44. On whether the applicants have offered security for the due performance of decree, the applicants have done so in the pleadings and submissions by their counsel was to the effect that they are ready to deposit into court the decretal sum as security. In my view, this condition can be imposed by the court granting stay, whether the applicant offers security or not.

45. For the above reasons, I find that this is a suitable case for this court to exercise discretion in favour of the applicants to accord them an opportunity to ventilate their grievances on appeal.

46. I allow the prayer for stay of Execution of decree in Ukwala SRM E13/2020 pending the filing, hearing and determination of the intended appeal conditional upon the applicants herein depositing into a joint interest earning account to be opened and held by both counsel for the parties hereto, Ms. Omondi and Company Advocates and Ms. Ogejo, Omboto and Kijala Advocates LLP, within the next 30 days of today. In default, the stay granted shall lapse.

47. On costs, I find that in view of the problem of delay having been occasioned by shortage of court staff at Ukwala Law Courts to facilitate expeditious delivery of justice and services to members of the public and other court users during the period mentioned, it would be unfair to penalize parties with costs. I order that each party shall bear their own costs of this application for leave to appeal out of time and for stay of execution of decree pending the filling, hearing and determination of the intended appeal.

48. Orders accordingly.

49. File closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 14TH DAY OF JUNE, 2022R.E. ABURILIJUDGE