[2017] KEHC 3007 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

MISCELLANEOUS CIVIL APPLICATION NO. 32 OF 2017

BOARD OF MANAGEMENT,

CHANGAMWE SECONDARY SCHOOL………………….………..APPLICANT

VERSUS

PREMJI PATEL COMPANY LIMITED…………………..…….……RESPONDENT

RULING

[Notice of Motion application dated 31st May, 2017]

1. Through the Notice of Motion application dated 31st May, 2017, the Applicant being the Board of Management Changamwe Secondary School prays for two main orders. The Respondent is Premji Patel Co. Limited. Firstly, the Applicant seeks a stay of execution of the decree dated 17th May, 2017 issued in Malindi CMCC Nos. 330 & 331 of 2013 Premji Patel Company Ltd v Board of Management Changamwe Secondary School pending appeal. Secondly, the Applicant seeks an enlargement of time for filing an appeal. The application which is brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, 2010 is supported by grounds on its face and an affidavit sworn by Deborah Wangari Njoroge the Secretary of the Applicant.

2. It is the averment of Ms Njoroge that judgement against the Applicant was delivered on 6th July, 2016 but the delay in filing a memorandum of appeal was due to an inadvertent mistake on the part of the state counsel. Her averment is that the decretal sum is substantial and the Respondent’s appeal if successful may be rendered nugatory. Further, that the Applicant is desirous of filing an appeal as the same has high chances of success.

3. The Respondent opposed the application through a replying affidavit sworn on 14th June, 2017 by its director, Sajay Premji Patel. His averment is that after judgement was delivered the Applicant was requested through a letter dated 2nd September, 2016 to liquidate the decretal amount followed by a reminder dated 11th October, 2016. Following the failure by the Applicant to make payment a decree was extracted on 11th May, 2017.

4. It is the Respondent’s position that the application herein was brought after unjustified and unreasonable delay. The Respondent asserts that the proposed appeal is not arguable and devoid of merits. Further, that the memorandum of appeal is jumbled up as it purports to bring two appeals within the same memorandum of appeal. It is the Respondent’s opinion that the application is a litigation strategy by the Applicant to deny it the fruits of judgement.

5. The Respondent contends that the Applicant has not demonstrated that it will suffer substantial loss should stay not be granted. Further, that by not offering any security as required by law, the Applicant has shown lack of seriousness in regard to the application.

6. On 14th June, 2017 the advocates for the parties were directed to file and exchange submissions before 28th September, 2017 when the matter was listed for hearing. When the matter came up for hearing on 28th September, 2017 counsel for the Applicant was not in court and no submissions had been filed on behalf of the Applicant.

7. The Respondent’s counsel relied on the written submission he had filed. It is the Respondent’s position that the Applicant had not met the conditions that will enable the court exercise its discretion to extend time for filing an appeal. Counsel for the Respondent contends that the Applicant has not shown sufficient cause for not filing the appeal in time. This, counsel submits, being a requirement before leave can be granted, this court has no reason to allow the application for extension of time. Reliance is placed on the decision in Edward Kamau & another v Hannah Mukui Gichuki & another [2015] eKLR.

8. As for the application for stay of execution pending appeal, the Respondent asserts that the Applicant has not met the conditions for grant of such a stay. On this, reliance is placed on the decision of the Court of Appeal in Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another [2015] eKLR.

9. The time for filing appeals from subordinate courts is provided by Section 79G of the Civil Procedure Act, Cap. 21 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.”

10. In Salat v Independent Electoral & Boundaries Commission & 7 others [2014] KLR,the Supreme Court laid down the principles a court should consider in exercising its discretion to extend time for filing an appeal by stating that:

“17. The Court ought to consider the following principles in exercising the discretion to extend time for filing an appeal:

1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;

2. A party who seeks extension of time has the burden of laying a basis to the satisfaction of the court;

3. Whether the court ought to exercise the discretion to extend time, is a consideration to be made on a case by case basis;

4. Whether there is a reasonable reason for the delay, which ought to be explained to the satisfaction of the Court;

5. Whether there would be any prejudice suffered by the respondents if the extension of time was granted;

6. Whether the application had been brought without undue delay; and

7. Whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.”

Therefore, in order for the court to allow an applicant to file an appeal out of time the applicant must satisfy the court that there was good and sufficient cause for not filing the appeal in time. It is the responsibility of the Applicant to state the reason for the delay and explain to the satisfaction of the court why the said reason should be sufficient for the court to exercise its discretion in his favour.

11. The Respondent herein has demonstrated to the court that the Attorney General’s office was notified of entry of judgment on 2nd September, 2016 and a reminder was made on 11th October, 2016. The Applicant took no action until the time the Respondent extracted a decree in May, 2017. The reason offered by the Applicant is that failure to file an appeal in time or seek leave for extension of time for filing appeal so soon thereafter was occasioned by an inadvertent mistake on the part of the state counsel. This, in my view, is an explanation that cannot be believed. Nowhere is it averred that the state counsel had been instructed to appeal. There is no letter from the Applicant instructing the Attorney General to appeal. Advocates act on instructions of their clients.

12. The impression one gets from the Applicant’s nonaction is that the Applicant is an indolent litigant. Courts do not come to the aid of such parties. The Applicant claims that it is in the public interest that execution should not be carried out against a school as this would affect learners. Parties who appear before courts are all governed by the same laws and rules of procedure. A party cannot claim to be special so as to be entitled to be treated differently from other litigants. In any case, the Respondent being the holder of a decree is entitled to enjoy the fruits of judgment.

13. Bringing this application, nine months after the Applicant had notice of the judgement is not only negligent but does not attract the court’s sympathy because of the inordinate delay. I therefore agree with the Respondent that no good reason has been advanced by the Applicant to warrant this court to extend the time for filing an appeal. The application for leave to file appeal out of time is therefore found to be without merit. The same is dismissed.

14. Had the Applicant succeeded in moving this court to enlarge time, I would have found its application for stay untenable. The decree herein is a money decree. It has not been shown that the Respondent will not be able to refund the money if the proposed appeal were to succeed. The Applicant has therefore not established that the proposed appeal would be rendered nugatory once the decree is executed.

15. For the reasons stated above, I find the application herein without merit. The application is dismissed with costs to the Respondent.

Dated, signed and delivered at Malindi this 12th day of October, 2017.

W. KORIR,

JUDGE OF THE HIGH COURT