[2017] KEHC 2387 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

MISC. CIVIL NO. 33 OF 2017

BERNARD NJIRU..........................................APPLICANT

VERSUS

STEPHEN MUGAMBI...............................RESPONDENT

RULING

This is an Application by way of Notice of Motion dated 14th March, 2017 brought under Sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act seeking orders that:

Spent.

Spent.

THAT leave be granted to the Applicant herein to file an appeal against the whole of the judgment and decree in Gatundu SRMCC No. 105 of 2015.

THAT the Honourable Court be pleased to stay execution of the decree in Gatundu SRMCC No. 105 of 2015 pending the hearing and determination of the intended appeal.

The Application is based on grounds stated on the face of the Notice of Motion and supported by the affidavit of Kibiku Paul Kariba, a Legal Officer of the Insurer of the Applicant. The Insurer is conducting this matter under the doctrine of subrogation.

The intended appeal arises from a judgment delivered by the Honourable Nyongesa in Gatundu SPMCC No. 105 of 2015. The judgment was delivered on 30/01/2017. The Applicant is dissatisfied with the judgment and seeks to appeal. However, he is out of time having failed to timeously file his Memorandum of Appeal within thirty days of the reading of the judgment.

The explanation given for the delay is that the Advocate for the Applicant apparently attended Court on 20/01/2017 but a clerk informed him that the judgment was not ready. However, judgment was read on the same day unbeknown to the Applicant’s advocates. The Applicant’s advocates say that they only came to learn of the judgment on 08/03/2017 when the Respondent’s advocates called them demanding payment of the decretal sum.

The Applicant says that his advocates immediately perused the Court file only to discover that judgment had been entered way back in January. They, then, immediately filed the present Application.

The Applicant argues that the delay was caused by an excusable and inadvertent error on their part and that the Application should be allowed. They argue that the Appeal has a high probability of success and that the insurer would suffer irreparable loss if stay is not granted pending the hearing of the appeal.

The Application is opposed. The Respondent filed a Replying Affidavit. The Respondent, in the main, complains that the reasons given for the Applicant to have been absent from Court the day judgment was delivered are not genuine. He says he was personally in Court and never saw the Advocates for the Applicant in Court. Furthermore, the Respondent finds the delay in bringing the Application as inordinate.

Lastly, the Respondent resists the prayer for stay as unmeritorious. He argues that the Applicant has not shown that he will suffer substantial loss or that the appeal will be rendered nugatory if execution ensues. The Respondent argues that what is at issue is a money decree and the Respondent is in a position to refund any decretal amounts paid if the appeal is reversed. In this regard, the Respondent has deponed that he is an Administration Police Officer of the rank of a Corporal with monthly earnings of Kshs. 47,500/=. He also deponed that he has Harambee Sacco shares worth Kshs. 233,990/= which entitle him to a loan of three times the value of the shares. To demonstrate the veracity of these claims, the Respondent has attached his pay slip for two months.

After initially dismissing the Application for non-attendance, the Court reinstated the Application upon the consent of both parties and directed that the Application be canvassed by way of written submissions. Both parties filed their written submissions.

In the upshot counsel for the Applicant submitted that the Applicant has demonstrated himself as being serious in pursuing the appeal and that the delay in filing the Appeal was occasioned by the inadvertent and excusable error of the advocate which should not be visited on the client. The delay, Counsel submitted, was not inordinate. Counsel relied on Fahim Yasin Twaha v Timamy Issa Abdallah & 2 Others [2015] eKLR. This case restated the principles which a Court should consider in exercising its discretion to extend time which were first stated by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others, SC Appl. 16/2014.

In urging the Court to excuse the mistake of Counsel, the Applicant relied on Richard Ncharpi Leiyagu v IEBC & 2 Others [2013] eKLR.

Lastly, the Applicants’ counsel submitted that the conditions to be satisfied for grant of stay of execution have been satisfied here. Counsel relied on Ndiaye v African Virtual University [2015] eKLR. Counsel indicated that the Applicant is ready and willing to abide by any conditions for due performance that the Court may issue.

Consequently, the respondent’s counsel filed their submissions. He relied on the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others, SC Appl. 16/2014which case lays down the principles that a court should consider in exercise of discretion to extend time.

On his part, Counsel for the Respondent vehemently argues that the Applicant has not stated any good reason for the delay in filing the appeal on time. He argues that the reason given in the affidavit of Kibiku Paul Kabira is unacceptable since the deponent is swearing to hearsay evidence. This is because, the Respondent argues, the deponent was not present and is only deponing to facts told to him. This is contrary to the law which states that affidavits should only be sworn on matters of fact. Counsel has relied on Aloise Marete v Boniface Mutethia Kiambi (Nairobi High Court Civil Appeal No. 279 of 2015)andWachira v Niels Burel & 2 Others (Nairobi High Court Civil Suit No. 16 of 2015) as well as Alfa Motors Limited v Toyota East Africa Limited (Nairobi Civil Suit No. 664 of 2002).

Beyond this, Counsel for the Respondent was also vehement in arguing that the appeal does not have any merit at all on both aspects related to liability as well as those related to quantum. Counsel went into quite some depth to demonstrate that the Learned Trial Magistrate was justified to reach the conclusions and findings that she did.

Section 79G of the Civil Procedure Act is the operative part in answering the question whether the prayer to enlarge time to file the appeal is merited. The section provides as follows:

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.

Our case law has now provided guidelines on what will be considered “good cause” for purposes of permitting a party who is aggrieved by a lower court judgment or ruling to file an appeal out of time. The most important consideration is for the Court to advert its mind to the fact that the power to grant leave extending the period of filing an appeal out of the statutory period is discretionary and must be granted on a case by case basis. While not a right, it must be exercised judiciously and only after a party seeking the exercise of the discretion places before the Court sufficient material to persuade the Court that the discretion should be exercised on its behalf and in their favour.

Our case law has developed a number of factors which aid our Courts in exercising the discretion whether to extend time to file and an appeal out of time. Some of these factors were suggested by the Court of Appeal in Mwangi v Kenya Airways [2003] KLR. They include the following:

The period of delay;

The reason for the delay;

The arguability of the appeal;

The degree of prejudice which could be suffered by the Respondent is the extension is granted;

The importance of compliance with time limits to the particular litigation or issue; and

The effect if any on the administration of justice or public interest if any is involved.

Like the Respondent, I am a little dismayed by the reason the Applicant gives for not being aware of the judgment and the time it took them to realize that judgment had been entered. It seems odd that an advocate would travel all the way to Gatundu to collect a judgment only to ask a clerk if it is ready. It is even odder that the name of the advocate or the clerk is not given in the deposition by the Applicant. It is oddest that the advocate in question did not swear any affidavit in this regard. It leaves a lot of questions unanswered and, I must say, the authenticity of this narrative is in question.

Ultimately, however, after looking holistically at all the factors in the instant case, I am persuaded that that the Applicant has made out a strong case for extension of time. In coming to this conclusion, I have considered that the error – both in failing to appear to take the judgment and in the deficient documents placed before this Court – are squarely the errors of the Applicant’s Counsel. I must note here that these errors have been many and they have attended Counsel’s prosecution of this Application: at some point the Court struck out the Application for non-attendance.

Yet, I have found nothing to suggest that the Applicant has been malicious or has acted in bad faith in the delay. Moreover, the delay, while long, is not inordinate. Finally, as I have concluded below, the appeal is eminently arguable. As I have said above, the delay reflects on the Applicant’s advocate rather than the Applicant.

The Court of Appeal has indicated the attitude that the Court should wield in dealing with a situation such as this one where there is no showing of bad faith or intention or obstruct the administration of justice on the part of the counsel or his client in Phillip Keipto Chemwolo & another V Augustine Kibende [1986] KLR 495where it realistically stated that :

Blunders will continue to be made-from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of having his case determined on its merits.

Similarly, across the border, the Ugandan Supreme Court has, in Banco Arabe Espanol V Bank of Uganda [1999] 2 EA22, remarked, in similar vein, that:

The administration of justice should normally require that the substance of all disputes should be investigated and decided on their-merits and that errors, lapses should not necessarily debar a litigant from the pursuant of his rights and unless lack of adherence to rules renders the appeal process difficult and inoperative. It should seem that the main purpose of litigation, namely, the hearing and determination of disputes should be fostered rather than hindered.

For these reasons, I will exercise the Court’s discretion to grant leave to the Appellant to file an appeal out of time.

Having determined that the Court will exercise its discretion in favour of the Applicants, then the Court must answer the next question: should it further exercise its discretion to allow for stay of execution of the judgment and decree of the lower court?

The Application for stay of judgment is primarily governed by the terms of Order 42 Rule 6 of the Civil Procedure Rules. The conditions to be met by an Applicant in order to be entitled to an order for stay are encapsuled in that Rule in the following terms:

6 (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 order set aside.

2. No order for stay of execution shall be made under sub-rule (1) unless—

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; and

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.

The law regarding the grant of stay of execution is well established in Kenya. Among the legion of authoritative cases establishing it, the judges of the Court of Appeal were both concise and emphatic in Rhoda Mukuma v John Abuoga:

It was laid down in M M Butt v The Rent

Restriction Tribunal, Civil Application No Nai 6 of 1979, (followingWilson v Church (No 2) (1879) 12 Ch 454 at p 488) that in the case of a party appealing, exercising his undoubted right of appeal, the court ought to see that the appeal is not rendered nugatory. It should therefore preserve the status quo until the appeal is heard.

Granting a stay in the High Court is governed by Order XLI rule 4(2), the questions to be decided being – (a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security.

Hence, under our established jurisprudence, to be successful in an application for stay, an Applicant has to satisfy a four-part test. He must demonstrate that:

The appeal he has filed is arguable;

He is likely to suffer substantial loss unless the order is made. Differently put, he must demonstrate that the appeal will be rendered nugatory if the stay is not granted;

The application was made without unreasonable delay; and

He has given or is willing to give such security as the court may order for the due performance of the decree which may ultimately be binding on him.

I have perused the Draft Memorandum of Appeal filed in this case. Contrary to the Respondent’s vehement arguments, I am unable to say that the grounds of appeal enumerated are in-arguable. As I stated above to earn a stay of execution, one is not required at this stage to persuade the Appellate Court that the intended or filed appeal has a high probability of success. All one is required to demonstrate is the arguability of the appeal: a demonstration that the Appellant has plausible and conceivably persuasive grounds of either facts or law to overturn the original verdict. The Applicant has easily met that standard.

But what is the substantial loss that the Appellant is likely to suffer if the order is not granted? The Applicant claims that if “compelled to pay up the said decretal [sum] to the Respondent, [the] appeal would (sic) stand as an academic exercise.” This is because, claims the Applicant, the Respondent would not be able to refund the decretal sum if the Applicant is successful on appeal.

The Applicant offers no evidence whatsoever for the bald claim that the Respondent will be unable to refund any decretal sums paid to him if the appeal is successful. Indeed, in the Supporting Affidavit, no such claim is made. It is made for the first time in Written Submissions.

On its part, the Respondent has demonstrated that he is an Administration Police Officer of the rank of a Corporal with monthly earnings of Kshs. 47,500/=. He also deponed that he has Harambee Sacco shares worth Kshs. 233,990/= which entitle him to a loan of three times the value of the shares. This evidence has not been contested or rebutted and it is taken as established. Indeed, the Respondent exhibited his current pay slip as evidence. The decretal sum is Kshs. 700,000/=. I find it quite a stretch to suggest that a person employed as a Corporal in the Disciplined Forces in our Republic will be unable to refund that decretal sum if the appeal is not successful. I would, therefore, conclude that the Applicant has not successfully satisfied this second limb of the four-part test outlined above. If the Applicant cannot demonstrate that the appeal would be rendered nugatory if the decretal sum is paid, it follows that he cannot demonstrate that he will suffer substantial loss if stay is not granted.

Given my analysis above on extension of time, I would barely have held that the Application was not barred by inordinate delay. Finally, since the Applicant has offered to abide by any conditions placed by the Court, I would have concluded that the Applicant has satisfied the last condition of satisfying such conditions as may be necessary for due performance of the decree which may ultimately be binding on him.

However, since I have already concluded that the Applicant has failed to show that he would suffer substantial loss and that the appeal would be rendered nugatory if a stay is not granted, the request for stay is hereby declined.

Consequently, the final orders of the Court will be as follows:

The Applicants shall file and serve a Memorandum of Appeal within seven days of the date hereof.

The Applicants shall file and serve the Record of Appeal within thirty days from the date hereof.

The Applicants shall write to the Deputy Registrar requesting him to place the Appeal before the Judge for directions within fourteen days of the filing of the Record of Appeal.

The prayer for stay of execution of the lower Court’s judgment and decree is declined. However, there shall be a temporary stay of execution for thirty (30) days to give an opportunity to the Applicant to pay the decretal sum.

The Applicant shall pay the costs of this Application.

Orders accordingly.

Dated and delivered at Kiambu this 2nd Day of November, 2017.

………………….

JOEL NGUGI

JUDGE