[2025] KEHC 3303 (KLR)

Ambundo v Ambundo; Ambundo (Interested Party) (Civil Suit 40 of 2012) [2025] KEHC 3303 (KLR) (Family) (18 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3303 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Suit 40 of 2012

EKO Ogola, J

March 18, 2025

Between

Betty Ihavi Ambundo

Plaintiff

and

James Mabango Ambundo

Applicant

and

Samuel Okwayo Ambundo

Interested Party

Ruling

1. The application before this court is dated 5th February 2024. The applicant prays for the following orders:-a.Spent;b.Spent;c.That the applicant be granted leave to appeal out of time and to file and serve a proper Notice of Appeal against the judgment and decree dated 5th November 2019. d.That there be a stay of execution of this honorable court’s judgment and decree dated 5th November 2019 pending the filing and service of the Record of Appeal.e.That the costs of this application be provided for.

2. The application is based on the grounds set out therein and the applicant’s supporting affidavit. The applicant deposed that he was aggrieved by the judgment of this court and due to this file going missing, he could not file a Notice of Appeal. The applicant further deposed that he has an arguable appeal and that the plaintiff herein will not be prejudiced if orders sought are granted. Further to this, the applicant deposed that if orders of stay of execution pending appeal is not granted, the appeal is going to be rendered nugatory.

3. The plaintiff opposed the application vide a Replying Affidavit dated 20th May 2024. She deposed that after the original court file went missing, Misc. Cause No. 46 of 2020 was opened as a temporary file, and the applicant did not file an application for stay of execution. Therefore, according to the plaintiff, this application is an afterthought. The plaintiff further deposed that the applicant’s reason for the delay was baseless and that the argument that his previous counsel did not apply for a stay and that the mistakes of his counsel should not be held against him is not tenable. She deposed that the applicant’s current counsel is not on record and has not complied with Order 9 Rule 9 of the Civil Procedure Rules. The plaintiff stated that the applicant’s delay was unreasonable and inordinate and should not be condoned. Furthermore, the plaintiff deposed that since the applicant has not annexed a draft Memorandum of Appeal, he does not have an arguable appeal with any chance of success.

4. Parties canvassed the application by way of Submissions

Determination 5. I have considered the application, the rival affidavits and submissions as well as the entire record of the court. The first issue for determination is whether the court should exercise its discretion to grant the applicant leave to file his appeal out of time.

6. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-“The underlying principles a court should consider in exercise of such discretion should include:-a.Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;b.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;c.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;e.Whether there will be any prejudice suffered by the respondent if the extension is granted;f.Whether the application has been brought without undue delay.

7. Similarly, in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015]eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:-“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”

8. Applying the above principles to the present case, the impugned judgment was delivered on 5th November 2019. The Original file went missing, and a temporary file was opened on 23rd March 2020, where the applicant filed an application for a stay of execution of the impugned judgment. This application was neither heard nor determined. On 1st February 2024, the original case file was found and the temporary file was consequently closed. The applicant then filed this application four days later.

9. Since the applicant has an automatic right of appeal, there is no Notice of Appeal that was filed. The applicant puts all the blame on his previous counsel. The applicant and/or his counsel also failed to file a Notice of Appeal in the temporary file. The applicant has also not attached a draft of the Memorandum of Appeal to answer whether or not his appeal would raise triable issues.

10. It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but the court appealed from may for sufficient cause order stay of execution of such decree or order and whether the application for such stay shall have been granted or refused by the court appealed from the court to which such appeal is preferred shall be at liberty on application being made to consider such application and to make such order thereon as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the Appeal is preferred may apply to the appellate court to have such orders set aside.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.

11. Substantial loss was clearly explained in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR as follows;-“No doubt in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

12. The applicant is silent in his affidavit on how he stands to suffer substantial loss. It is only in his submissions that he contends that he stands to suffer irreparably if the respondents levy execution against him.

13. Execution is a lawful process and it is not a ground for granting stay of execution. The applicant is required to show how execution will irreparably affect him or will alter the status quo to his detriment, therefore rendering the appeal nugatory. The appellant has failed to demonstrate substantial loss in my considered view.

14. I have further perused the court record and noted that in the impugned judgment, the matrimonial home is to be divided equally between the plaintiff and the respondent. Therefore, the respondent will get 50% of the subject property. If the Court of Appeal alters the ratio of distribution, I am satisfied that the plaintiff will be in a position to refund the extra percentage awarded. I am of the view that the execution of the impugned judgment will not render the appeal moot.

15. From the foregoing, I dismiss the application dated 5th February 2024 save for prayer (c). The applicant is granted leave to appeal out of time. Applicant to bear the costs of this application.Orders accordingly.

DATED AND DELIVERED AT NAIROBI THIS 18TH DAY OF MARCH 2025. ………………………………………E.K. OGOLAJUDGEIn the presence of:Ms. Munyao for the PlaintiffMr. Ashirimo for the RespondentGisiele Muthoni Court AssistantE. OGOLA J.