[2023] KEHC 25186 (KLR)

Board of Management, Iriani Secondary School & another v Kiimbu (Miscellaneous Civil Application E017 of 2023) [2023] KEHC 25186 (KLR) (2 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25186 (KLR)

Republic of Kenya

In the High Court at Chuka

Miscellaneous Civil Application E017 of 2023

LW Gitari, J

November 2, 2023

Between

Board of Management, Iriani Secondary School

1st Applicant

Japheth Nthiga

2nd Applicant

and

Peter Kamuguange Kiimbu

Respondent

Ruling

1. By a Notice of Motion application dated 3rd August, 2023 and filed on 4th August, 2023, the Applicants pray for orders that this Honourable Court be pleased to grant leave to the Applicants to file an appeal out of time against the judgment delivered in Marimanti Principal Magistrate’s Court Suit No. E020 of 2021.

2. In addition, the Applicants pray that this Court be pleased to order a stay execution of the judgment and any decree consequent thereto in the said suit before the lower court pending the hearing and determination of the intended appeal. The Applicants also pray that the costs of this Application be provided for.

3. The Application is expressed to be brought under the provisions of Sections 3A, 79G, and 95 of the Civil Procedure Act (Cap 21), as read with Section 63(e) of the Civil Procedure Act, and Order 9, Rule 9, and Order 51, Rule 1 the Civil Procedure Rules 2010.

4. The application is premised on the grounds on the face of it and is supported by the affidavit sworn by Humprey Mwangi Muthoni, the Applicant’s Counsel, on 3rd August, 2023. Mr. Humprey deposes that he is an Advocate of this court, practicing as such under the firm of J. M. Mwangi & Co. Advocates LLP, which firm is seized of the instant application on behalf of the Applicants herein and was also on record for the Applicants who were sued by the Respondent herein in Marimanti Principal Magistrate’s Court Suit No. E020 of 2021.

5. Mr. Humprey further deposes that on 26th July, 2023, the court administrator of Marimanti Law Courts sent an email to the advocate for the Applicants, which email attached the judgment in Marimanti Principal Magistrate’s Court Suit No. E020 of 2021. That it was indicated in the said judgment that the same was delivered on 13th April, 2023 in the presence of the “Plaintiff”, “Defendant” and one “Mr. David” who is described as the court assistant.

6. Mr. Humprey contends that the statement appearing in the said judgment on when and in whose presence the judgment was delivered is incorrect for the alleged reason that no judgment was delivered on 13th April, 2023. That on the said 13th April, 2023, Mr. Humprey logged onto the court’s virtual session and the court indicated that the judgment had been rescheduled to 20th April, 2023 and that the fact that the judgment was to be delivered on 20th April, 2023 is apparent from a cause list posted on the Marimanti Bar Bench Whatsapp Forum on 14th April, 2023 by David Mutiiria.

7. Mr. Humprey further contends that on 20th April, 2023, their Mr. Thuku logged onto the trial court’s virtual platform and was advised that the judgment would be delivered at 3. 00 p.m. and was advised to log in at that time. Mr. Humprey claims that on the same day at 2. 56 p.m., he tried to log onto the trial court’s virtual platform through the provided link but was unable to. That he subsequently posted a message on the Marimanti Bar Bench WhatsApp Forum requesting to be admitted and got a reply from the court that there was no internet connection at Marimanti Law Courts. That he then sent a letter on the same 20th April, 2023 to the court’s email address giving the Applicants’ consent to have the judgment delivered via email and that a copy of the said letter was also posted on the WhatsApp bar-bench forum.

8. Mr. Humprey claims that thereafter, his firm sent several reminders to the court but it was not until 26th July, 2023 that they received a response attaching the judgment. It is Mr. Humprey’s contention that upon receipt of the said email, he protested against the statement on when and in whose presence the judgment was delivered. Further, that on the same 27th July, 2023, he carried out a search on the Judiciary Public Information Kiosk and found that the outcome for judgment slated for 13th April, 2023 was described as “judgment date given” and a new activity called ‘Judgment’ was entered for 20th April, 2023.

9. Annexed to Mr. Humprey’s affidavit is a certificate of delay issued by the Honourable Principal Magistrate on 28th July, 2023. The said certificate reads that the judgment was delivered on “13/04/2023 and a certified copy supplied on 16/07/2023 being a period of ninety seven (97) days” According to Mr. Humprey, that the information in the said certificate is incorrect as no certified copy of the judgment was supplied to him on 16/07/2023. He contends that he subsequently went to search the Judiciary Public Information Kiosk on 31st July, 2023 and discovered that the outcome of the entry of 13/04/2023 had allegedly been revised to reflect the new position that judgment was delivered on that date. That it is not clear what the search shows an activity called judgment on 20/04/2023 with no outcome.

10. Mr. Humprey asserts that if indeed the said judgment was delivered in the present of the “Defendant” as alleged, the court ought to have specified the alleged Defendant as there were two defendants being the applicants herein. He thus maintains that the statement on when and in whose presence the judgment was delivered effectively deprived the Applicants of their statutory right of appeal which injustice he alleges can only be addressed by this Court through its powers under Section 79G of the Civil Procedure Act.

11. The learned counsel for the Applicants contends that the Applicants have an arguable appeal and thus implore this Court not to shut them out. That the intended appeal will be rendered nugatory unless the present application is allowed by an order of stay of execution pending the intended appeal. Further, that the Respondent shall not be able to refund the sum of Kshs. 2,448,400/= in the likely event that the intended appeal is successful and that the orders prayed for will not occasion prejudice upon the Respondent. Finally, Mr. Humprey deposed that the Applicants are ready to comply with the conditions set by the court for that opportunity to be heard on appeal.

12. The application is opposed by the affidavit sworn by the Respondent on 30th August, 2023. The Respondent contends that the averments contained in the affidavit in support of the application are hearsay and mere conjecture seeking to confuse the real matters in issue. That the application is mischievous, mala fides and a scheme to delay the conclusion of this suit.

13. The Respondent asserts that the Applicants having failed to appeal against the judgment of the trial court within the statutory time period indicates indolence or negligence on their part which should oust them from the seat of equity. Further, that the intended appeal by the Applicants have a low chance of success.

14. The Respondent asserts that he is not a pauper or made of straw and hence invited this Court to take the contention by the Applicants that that the Respondent will be incapable of refunding the judgment sum as a biased perception against him that is not supported by evidence. The Respondent maintains that the present application is prejudicial to him stating that the prosecution of Marimanti Principal Magistrate’s Court Suit No. E020 of 2021 has occasioned him.

15. The application was canvassed by way of written submissions which I have duly considered.

Analysis a. On whether the Applicant is entitled to leave to file his intended appeal out of time 16. Section 79G of the Civil Procedure Act is the operative legal provision in answering the question whether the prayer to enlarge time to file an appeal is merited. The said 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.”

17. The extension of time is an equitable remedy reserved for a deserving applicant. The onus is thus on the Applicant to demonstrate a good and sufficient cause for not filing the appeal in time, failure to which the order of extension of time ought not to be granted. The factors that a court should consider in such a case were highlighted in the case of Mombasa County Government v. Kenya Ferry Services & Anor (2019) eKLR where the Supreme Court held as follows:“25] Concerning extension of time, this Court has already set the guiding principles in the Nick Salat Case as follows:““… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.““… we derive the following as the underlying principles that a Court should consider in exercising such discretion: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 should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;4. where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;5. whether there will be any prejudice suffered by the respondents, if extension is granted;6. whether the application has been brought without undue delay; and7. whether in certain cases, like election petitions, public interest should be a consideration for extending time”

18. Similarly, in Thuita Mwangi V Kenya Airways Ltd [2003] eKLR, the Court of Appeal suggested some of the factors that aid Courts in exercising the discretion whether to extend time to file an appeal out of time. These include the following:i.The period of delay;ii.The reason for the delay;iii.The arguability of the appeal;iv.The degree of prejudice which could be suffered by the if Respondent the extension is granted;v.The importance of compliance with time limits to the particular litigation or issue; andvi.The effect if any on the administration of justice or public interest if any is involved.

19. In this case, the Applicant has provided reasons for the delay in filing his intended appeal. It claims that the date indicated in the impugned judgment as to when the judgment was delivered and in whose presence it was delivered is incorrect. Further, that the Applicant requested for a copy of the judgment from the court and that it was not until 26th July, 2023 that he received an email from the court forwarding the said judgment. Consequently, this application was filed eight (8) days after the Applicant received the said email. The Applicant has provided sufficient evidence to show that it was not indolent and indeed followed up on the judgment from the court. I find that the Applicant has provided valid reasons to warrant this court to allow its application for extension of time to file its intended appeal.

On whether the Applicant is entitled to an order of stay of execution of the impugned judgment 20. An application for stay invokes the discretionary powers of this court under Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 that empowers the court to stay execution, either of its judgment or that of a court whose decision is being appealed from, pending appeal.

21. The conditions to be met before stay is granted are provided for under Order 42 Rule 6(2) which provides that:“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.”

22. The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 gave guidance on how a court should exercise discretion and held that:-“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”

23. Substantial loss is an issue of fact that must be raised by the Applicant and supported by evidence. The total decretal sum arising from the impugned judgment is Kshs. 2,448,000/= plus costs and interests. In my view, the total amount being claimed from the Applicant in fulfillment of the impugned judgment is quite substantial. As such, I am satisfied that the execution of the decree will cause the Applicant substantial loss.

24. Order 42, Rule 6 of the Civil Procedure Rules requires the provision of security as a pre-condition for allowing a request to stay execution. In this case, it is my view that the Applicant should be ordered to provide reasonable security to warrant this Court to issue an order of stay of execution.

ConclusionThe upshot of the above, is that the Applicant’s Notice of Motion application dated 3rd August, 2023 is merited. I order as follows:1. The application is allowed in terms of prayer 3&4 on the Notice of Motion.2. The applicant shall provide security.3. The applicant to provide security by paying the respondent half the decretal sum within fourteen days.4. The appeal shall be filed within thirty 30 days.5. Costs to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 2ND DAY OF NOVEMBER, 2023. L.W. GITARIJUDGE2/11/2023Mr. Mwangi for ApplicantMr. Kaimba for RespondentThe ruling has been read out in open court.L.W. GITARIJUDGE2/11/2023