[2015] KEHC 885 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL APPEAL NO. 88 OF 2015

1. BOARD OF GOVERNORS NAMBALE SECONDARY SCHOOL...........1ST APPELLANT

2. NAMBALE SECONDARY SCHOOL .....................................................2ND APPELLANT

VERSUS

MAURICE ALABA ETYANG........................................................................RESPONDENT

(Appeal from the Ruling in Eldama Ravine Principal Magistrate's case Number 86 of 2013 at Ravine by Hon. M.N. Maroro, Acting Senior Resident Magistrate delivered don 24th June 2015

RULING

1. The Applicants Notice of Motion dated 1st July 2015 seeks an order of stay of execution of judgment and decree in Eldama-Ravine CMCC 86 of 2013 against them, being the 1st and 2nd Defendants in the said suit. An interim order of stay of execution was granted by the court on the 3rd July 2015.

2. The application is based on Order 42 Rule 6 of the Civil Procedure Rules and Sections 3A and 63(e) of the Civil Procedure Act and on the grounds that upon delivery of the Ruling subject of the appeal herein, and issued by the Hon. M.K. Maroro on the 24th June 2015, the applicants sought for stay of execution of the Ruling by their application filed on the 24th June 2015 but the trial court dismissed the application. On the following day, the 25th June 2015, the Respondent served the appellants with a Notice of Attachment of their movable goods in satisfaction of the decree in the said court.

On the 2nd July 2015 a Memorandum of Appeal was filed against the said Ruling dated the 24th June 2015, being eight days after the ruling subject of this appeal.

3. The application that gave rise to the appeal herein was filed on the 24th June 2015 and sought an order that the Ex parte judgment entered against the applicants on the 10th February 2015 be set aside on grounds that the applicants were not served with summons to enter appearance and therefore the ex parte proceeding and judgment arising therefrom were irregularly obtained. Upon hearing the application, the Honourable Principle Magistrate dismissed the application and also denied the applicant's stay of execution order against the Ruling.

4. The application is opposed on the following grounds:

1. That there is no competent appeal before the court,

2. That it was filed out of time,

3. That the appeal was lodged without leave being an appeal against the court's denial of stay of execution orders, and that the Memorandum of Appeal is undated and unsigned,

4. That no security for due performance of the decree was offered.

5. That no substantial loss was demonstrated by the applicant.

5. The court has considered the application, affidavit evidence and submissions by both counsel.

In the court's view, the issues that arise are two fold,

(1) whether there is a competent appeal on record from the ruling issued by the trial court on the 24th June 2015.

(2) whether, arising from the above, there are sufficient grounds to persuade the court to stay execution of the decree of the trial court pending the hearing and determination of the appeal.

6. The Memorandum of Appeal as may be discerned from the court record was filed on the 2nd July 2015, is dated and signed, and paid for as evidenced by the court fees receipt issued on the same day. It is indicated to be an appeal against the ruling issued on the 24th June 2015. The Ruling was in respect of an application before the trial court seeking to set aside the Exparte judgment. The application was brought under Order 22 Rule 22 and Order 12 Rule 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.

To that extent, the ruling having been delivered on the 24th June 2015 and appeal filed on the 1st July 2015, was filed within time.

7. Under Order 43 Rule (1) K of the Civil Procedure Rules an appeal against an order in execution is provided, and is of right. Further Order 10 rule 11 of the Civil Procedure Rules provides that an appeal shall lie as of right form an order/ruling of setting aside judgment in default of appearance. Contrary to the Respondents submissions, there was no requirement for leave of the court to file the appeal.

Order 42 Rule 6of the Civil Procedure Rules requires that an application for stay of execution first be made in the trial court that may deny or allow the application.

By an application dated 23rd June 2015 and filed in the trial court under Order 22 Rule 22 of the Civil Procedure Rules, the applicant did seek stay of execution of the decree against the applicants in the trial court. On the 24th June 2015, the trial court denied to grant the orders of stay, now subject of the appeal hereof.

The chronology above shows that the applicants followed the legal provisions as provided and therefore the appeal as filed is procedurally without fault.

8. The court has noted that the appellant/applicants did not attach or provide to the court a copy of the ruling sought to be appealed from. Does this omission render the Appeal incompetent? Section 79G of the Civil Procedure Act provides that an appeal from a subordinate court shall be filed within thirty(30) days from the date of the decree or order appealed from, excluding from such period anytime 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 the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time. It is a mandatory requirement, and would therefore be reasonable to conclude that without the order/ruling appealed against, the appeal would be incomplete and therefore incompetent.

During his submissions, counsel for the applicants did not address the court on the above issue. He relied entirely on the affidavit in support of the application sworn on the 1st July 2015 by Solomon Sisuma, Secretary of the Board of Governors of Nambale Secondary School. The affidavit is silent on this. The proclamation on the school property was taken on the 18th June 2015. The only document attached and availed to the court was a copy of the proclamation. It is not explained why a copy of the ruling appealed from was not availed.

9. In the case Kulwant Singh Roopra -vs- James Nzili Maswili (2014) KLR, the court held that Section 79G of Act 21 allows time to be extended as required to make copy of the decree or order of the court appealed from. Firstly, the Memorandum of Appeal, and secondly, a copy of the Formal Order/Ruling of the court, if available.

Rule 2 of Order 42, Civil Procedure Rules, 2010 permits the Order/Ruling to be filed as soon as possible and in any event within such time as the court may order.

Order 42 rule 2 reads:

“where no certified copy of the decree or order appealed from is filed with the Memorandum of Appeal, the appellant shall file such certified copy as soon as possible and in any event within such time as the court may order, and the court need not consider whether to reject the appeal summarily under Section 79B of the Act until such certified copy is filed.”

Under the above rule, the appellant may file decree/order appealed from within a period as the court may grant.

A perusal of the court record shows that there was indeed eminent attachment of the applicant's property after the trial court rejected to grant a stay order. That may explain the urgency as to why the order appealed from could not have been obtained immediately, and within time, to attach to the application.

10. Article 159(1)(d) of the Kenya Constitution 2010 mandates the courts to administer justice without undue regard to procedural technicalities. This however does not confer rights to parties to ignore and throw out of the window statutory requirements on the administration of justice as stated in various statutes, among them the Civil Procedure Act and Rules.

After careful consideration of the matter at hand, the court is satisfied that failure to attach a copy of the ruling appealed from may not have been deliberate, and though a very essential procedural requirement, may not render the appeal fatally defective.

See Christopher W. Kagotho -vs- Francis Maina Karubi and Others (2014) KLR.

11. The Respondent submitted that no substantial loss was demonstrated by the applicant should the court deny an order of stay of execution and therefore the orders sought ought to be denied. See Christopher W. Kagotho (supra). Three essentials must be met by the applicant to succeed in an application for stay of execution under Order 42 Rule 6of Civil Procedure Rules.

1. That the application was brought timeously.

2. That security for the due performance of the decree or order must be given

3. That if orders sought are denied, the applicant may suffer substantial loss.

There is no doubt that the application was filed timetiously. On substantial loss being the cornerstone of such application, and though no submissions we offered, perusal of the court documents and more so the grounds upon which the appeal is based, lack of service of initial process to the appellants speaks loud. I have seen the affidavits of service of the plaint and summons upon the Appellants as exhibited by the Respondent. Other than affidavits of service, no evidence of service was shown. Though not attempting to determine the appeal at this interlocutory stage, the court is satisfied that there are very high chances of success of the appeal and if stay of execution is not granted, the appellants shall suffer irreparable loss as the school bus that is proclaimed may be sold in a public auction.

12. The appellant is a public school. It has not been shown that the school and its Board Of Governors(management)may not be able to satisfy the trial courts decree should the appeal not be successful.

In the case Mukuma -vs- Abuoga (1988) KLR 645, the issue of substantial loss is said to be the cornerstone of both such application for stay of execution pending appeal, and provision for security for due performance of the decree. Substantial loss in this instance, is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.

13. The Respondent has not tendered any evidence before the court to the effect that, being an individual he would be able to pay back the sum of over Kshs.3,000,000/= to the Applicants should the appeal be unsuccessful. If the same is paid to him, and the Estate and distributed to the beneficiaries of the Estate before the hearing and determination of the appeal, there will be no doubt that they may not be able to refund the same. Where doubt has arisen as to the capability of the respondent to refund the decretal sum, the evidential burden shifts to the respondent to show that he would be able to refund the sum paid to him.

In ABN AMRO BANK N.V. -VS- Le Monde Foods Limited Civil Application NAI 15 OF 2002.

It was stated:

“this evidential burden would be very easy for a respond to discharge. He can simply show what assets he has such as land, cash in the bank and so on.”

There is no evidence at all that if the decretal sum is paid to the Respondent and the appeal is successful he may be able to refund. On the other hand, I am satisfied that the applicant school and its Board of Management would have no serious difficulties in paying the decretal sum, of Kshs.300,000/= if the appeal is unsuccessful.

An order of stay pending appeal would be appropriate to preserve the status quo.

14. The Court is satisfied that an order of stay of execution pending the hearing and determination of the appeal would preserve the status quo. The result is that, the application dated 1st July 2015 is allowed upon the following terms and conditions.

(a) That the Applicants shall comply with the provisions of Order 42 Rule 2of the Civil Procedure Rules within a period of thirty(30) days from the date of this Ruling.

(b)That the Appellants shall take all necessary steps to file and serve the Record of Appeal within Ninety(90) days of this Order.

(c) That failure to abide by the above conditions, the Respondent shall be at liberty to proceed with execution of the lower court decree without further reference to the court.

(d) Costs of the application shall be costs in the appeal.

Dated, signed and delivered in open court this 28th day of October 2015

JANET MULWA

JUDGE