[2022] KEHC 15600 (KLR)

Captain Motorcycles Manufacturing Co Ltd v Wanyoike (Miscellaneous Civil Application E655 of 2021) [2022] KEHC 15600 (KLR) (Civ) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 15600 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E655 of 2021

DO Chepkwony, J

October 7, 2022

Between

Captain Motorcycles Manufacturing Co Ltd

Applicant

and

Wilson Gichinga Wanyoike

Respondent

Ruling

1. Before court is a Notice of Motion application dated December 20, 2021, expressed in terms of Section 3A and 79(G) of the Civil Procedure Act and Order 42 Rule 6 and 7, Order 50 Rule 5 all of the Civil Procedure Rules seeking for the following orders:a.Spent.b.That the honourable Court be pleased to grant stay of the decree in Milimani Commercial Courts Chief Magistrate’s Civil Suit No 1461 of 2012, Wilson Gichinga Wanyoike –vs- Captain Motorcycles Manufacturing Company Limited and all consequential orders pending the hearing and determination of this application.c.That the Honourable Court be pleased to grant stay of the decree in Milimani Commercial Courts Chief Magistrate’s Civil Suit No 1461 of 2012 Wilson Gichinga Wanyoike vs Captain Motorcycles Manufacturing Company Limited and all consequential orders pending the hearing and determination of the intended appeal.d.That the Honourable Court be pleased to grant leave to the Applicant to file the appeal out of time from the ruling in Milimani Commercial Courts Chief Magistrate’s Civil Suit No 1461 of 2012, Wilson Gichinga Wanyoike –vs- Captain Motorcycles Manufacturing Company Limited and be admitted out of time.e.That the costs of this application be provided for.

2. The application is supported by the annexed Supporting Affidavit of Ngaira C Lisamula, the Counsel in conduct of the matter and premised on the grounds that;a.The Applicant filed an application in Milimani Commercial Courts Chief Magistrate’s Civil Suit No 1461 of 2012, Wilson Gichinga Wanyoike vs Captain Motorcycles Manufacturing Company Limited dated April 28, 2021. b.The Honourable Court slated the matter for ruling on September 9, 2021 and later issued a notice that the ruling will be delivered on notice and no notice was issued. The ruling was delivered on October 19, 2021 in the absence of all parties and the Applicant is aggrieved and intends to file an appeal.c.The Applicant is yet to be supplied with typed and certified copy of the ruling and time for filing an appeal has lapsed. The Respondent has already proclaimed the Applicant’s property and therefore the Applicant’s property is in imminent danger of being sold and the Applicant will suffer substantial loss and/or grave loss and damages.d.In the event that the Respondent proceeds with execution, the Applicant’s appeal will have been passed by events and thus rendered nugatory. The Applicant’s intended appeal has overwhelming chances of success. The application has been made timeously and without delay.e.It is only fair that the time for filing this appeal be extended and the appeal filed herein be admitted out of time. The Applicant will be highly prejudiced unless this application is allowed.f.The delay occasioned in presenting this application is not inordinate as it was occasioned by unavoidable circumstances which are beyond the Applicant’s control. The Applicant is willing to abide by any conditions that may be imposed by the Honourable Court.

3. The application is opposed by the Respondent vide a Replying Affidavit sworn by Samwel Ayieko, the advocate on record for the Respondent. The Replying Affidavit was sworn on January 28, 2022. The Applicant avers that the suit was filed on March 27, 2012 and the Applicant entered appearance and participated being represented by the firm of M/S Maina Partners, Advocates. The matter was fixed for hearing on September 21, 2015 when the Applicant’s counsel sought an adjournment seeking to file a Third Party Notice which was filed on October 2, 2015 and allowed on February 1, 2016.

4. The Respondent states that the matter was later fixed for hearing of the main suit on September 25, 2017, October 24, 2017 and February 21, 2019, when in all occasions the Applicant sought for an adjournment. The matter was again set down for hearing on July 18, 2019 and both parties confirmed they were ready to proceed and took time allocation but when the matter was called out the defence counsel was nowhere to be seen. The matter proceeded and the court closed the defence (Applicant’s) case and directed parties to file submissions. On August 6, 2019, the Applicant’s advocates were served with Respondent’s submissions and a Judgment Notice.

5. The Respondent states that on October 25, 2019, through its advocates M/S Maina & Partners Advocates filed an application to re-open the case and recall the plaintiff’s witnesses for cross-examination. The application was never prosecuted.

6. The Respondent avers that on December 15, 2020, a judgement date was issued for February 3, 2021 and a notice was served upon the Applicant’s advocates. Despite service the Applicant refused or failed to attend court when Judgment was entered on February 3, 2021.

7. When Judgment was being entered the firm of M/S Ngaira and Ngaira advocates had come on record for the Applicant replacing the firm of M/S Maina & Partners, Advocates. After the delivery of Judgment, the Respondent’s advocates served the Applicant with a letter directing them to settle the decretal sum in satisfaction of the decree to avid execution.

8. On March 17, 2022, the court directed parties to canvass the application dated December 20, 2021 by way of written submission. The Applicant’s submissions are dated March 28, 2022 while the Respondents’ submissions are dated April 30, 2022. I have read through them and they are a replica of the averments by the parties in their respective affidavits.

Applicant’s Submissions 9. The Applicant’s submissions are dated March 28, 2022. The Applicant submits that it filed an application before the trial court dated April 28, 2021 in Milimani CMCC No 1461 of 2012 seeking to reopen the case for cross-examination of the plaintiff’s case and allow the defendants witness to testify. The application was heard and a ruling scheduled for September 9, 2021. On the scheduled date, the court gave a notice that the ruling shall be delivered on notice.

10. On September 30, 2021, the Applicant contended that Counsel on record made an inquiry but there was no response. Later, sometimes in October, 2021, the Applicant’s counsel discovered that the ruling had been delivered on October 19, 2021, without a proper notice upon the parties. The Applicant’s counsel’s efforts to peruse the court file were futile as court operations had been scaled down due to Covid-19 Pandemic restrictions.

11. The Applicant has submitted that the principles guiding the grant of stay of execution pending appeal are provided for under Order 42 Rule 6(2) of theCivil Procedure Rules. The Applicant is apprehensive that in the event the Respondent proceeds with execution, the Applicant’s intended appeal will be rendered nugatory.

12. It has been submitted on behalf of the Applicant that it is willing to deposit the decretal sums as security and ready to abide by any conditions that may be imposed by the Honourable Court with regard to granting stay of execution. The Respondent is unknown to the Applicant and so is their economic status. The Applicant has cited several authorities relating to provision of security. For instance, in the case of Focin Motorcycle Co Limited –vs- Ann Wambui Wangui & Another (2018) eKLR, it was stated that;“Where the Applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the Respondent the fruits of Judgment. My view is that it is sufficient for the Applicant to state that he is ready to provide security or to propose the kind security but it is the discretion of the court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.”

13. As regards the Respondent’s argument that the Applicant has not attached a draft Memorandum of Appeal which it intends to file, the Applicant submits that it is not fatal. It relied on the case ofVishva Stones Suppliers Limited –vs- RSR Stone (2006) Limited (2020) eKLR and Attorney General –vs- Charles Otok Oliech (2021) eKLR to the effect that failure to attached a draft Memorandum of Appeal is however not fatal as long as there is demonstration through supportive evidence that the intended appeal is arguable.

14. The Applicant has urged that it has demonstrated that substantial loss may occur on its part in the event stay of execution is not granted. Further, there is possibility of the Respondent not being able to reimburse the decretal sums in the event decretal sum is paid to him since his financial status is unknown. The Applicant prays that this Honourable Court allows the application dated December 20, 2021 as prayed.

Respondents Submissions 15. The Respondent’s submissions are dated April 30, 2021. The Respondent has raised several issues in its submissions. In regards to stay of execution, the Responded cited the provisions of Order 42 Rule 6 (1) and (2) of theCivil Procedure Rules and relied on the case of HGE –vs- SM [2020]eKLR, where the court stated as follows;“An application for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned: namely (a) that substantial loss may result to the Applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c) that such security as the court orders for due performance of such decree or order as may ultimately be binding on the Applicant has been given.”

16. It was submitted for the Respondent that the Applicant has not satisfied the principles enumerated for grant of stay. It has not established substantial loss. The Applicant submitted that the goods being proclaimed were orders made by customers but did not produce any sale agreement or transfer documents. The Respondent thus contended that the Applicant is not going to suffer any substantial loss if the proclaimed goods are sold as the same do not belong to the Applicant.

17. The Respondent argued that the application was brought to court with unreasonably delay. The Applicant was awoken upon being served with proclamation notice from the Respondent. The ruling subject of this application was delivered October 19, 2021. The Applicant filed this application on December 20, 2021 almost two months after the delivery of the ruling. The Applicant has not shown this Court any steps they have taken to fast track their intended appeal and did not even annex a draft Memorandum of Appeal yet they have a copy of the ruling. He submitted that the Applicant is only interested in denying the Respondent from enjoying the fruits of his Judgment. The Respondent cited several cases among them in Stanley Kiplagat Rono & Another –vs- William Kiprotich Cherus (2021) eKLR,

18. Regarding the issue of leave to file an appeal out of time, the Respondent cited Section 79G of the Civil Procedure Act“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.”The Respondent buttressed his submissions with the case of Nicholas Kiptoo Arap Salat –vs- Independent Electoral and Boundaries Commission & 7 Others (2014) eKLR, which laid down the guiding principles for exercising the discretion of court extending time."

19. The Respondent urged that the Applicant has not satisfied the laid down principles for grant of extension of time to file appeal out of time setting out several reasons which this Court has considered.

20. Finally, the Respondent urge the Court to dismiss the Applicant’s application dated December 20, 2021 with costs.

Analysis and Determination 21. I have considered the application before Court, the response thereto and the submissions by both Counsel for the parties. I find the issues emerging for determination by this Honourable court are;a.whether the application for leave to file appeal out of time is merited; and,b.whether or not the Applicant is entitled to stay of execution pending the hearing and determination of an appeal.

22. The statutory provision regarding appeals from a subordinate court to the High court is anchored on Section 75G of the Civil Procedure Act, which 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.”

23. The aforementioned provision of the law guide courts in the exercise of discretion on whether or not to grant leave as sought by the Applicant in this matter. In the case of Karny Zaharya & Another –vs- Shalom Levi CA No 80 of 2018 Koome JA stated:“In considering whether to grant leave to a litigant to file his or her appeal out of time, the Court will have regard to factors such as: the reasons for the delay, if any, that each party stands to suffer depending on how the Court exercises its discretion; the conduct of the parties, the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constituency underpinned right of appeal, the need to protect a partly opportunity to fully agitate it’s dispute, against the need to ensure timely resolution of disputes, the public interest issues implicated in the appeal or intended appeal and whether prima facie, the intended appeal has chances of success or is a mere frivolity.”

24. In the instant application before Court the Applicant has urged that the ruling they are challenging was delivered on October 19, 2021 and it indulged the Respondent on November 18, 2021 about it but there was no response. Further, the Applicant has stated that on December 16, 2021, Auctioneers visited the Applicant’s premises with warrants of attachment and sale.

25. There is no doubt that from the narration of events by the Applicant, it is the proclamation by the Auctioneers that prompted the filing of this application dated December 20, 2021. From the affidavit evidence on record, the Applicant has verred that it became aware of delivery of the ruling on October 19, 2021, I do not understand why they had to wait until December 16, 2021 when they were served with warrants of execution to file this current application.

26. The delay in bringing this application for extension of time to appeal against the ruling is almost two months from the date the trial Court delivered its decision. In the circumstances of this case, in view of the time when the Applicant became aware of the ruling and the time when the warrants were served, I find no good reason has been advanced for not complying with procedural timelines set out by the law.

27. It is therefore my humble view that the Applicant has not satisfactorily explained the reasons for the delay to warrant this court exercises its discretionary power in its favour in line with Section 75G of the Civil Procedure Act.

28. Be that as it may, the Applicant has not annexed a copy of the draft Memorandum of Appeal for this court to consider whether it raises substantial grounds to justify good prospects of an arguable appeal. However, a party has an arguable appeal, while pertinent appeal is not a matter to be delved into so much at this stage. This is because it would almost amount to getting into the gist of the appeal.

29. Turning to the second issue of whether or not the Applicant is entitled to stay of execution, pending the hearing and determination of the appeal, I am guided by the provisions of execution under Order 42 Rule 6 of the Civil Procedure Rules, 2010, which provides as follows:"1. 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 order set aside.2. No order for stay of execution shall be made under subrule (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."

30. The aforementioned provisions sets out the conditions to be met by a party to the proceedings seeking for stay of execution. Under the said provision, of the law, the application must have been filed without unreasonable delay. It must be demonstrated with evidence that the Applicant will suffer substantial loss if the orders of stay are not granted. That the Court considering the application does factor security for due performance of the decree.

31. The principles for granting stay were outlined by the Court of Appeal in the case of Butt –vs- Rent Restriction tribunal(1979) eKLR, where the court held that;"i.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.ii.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.iii.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.iv.The Court in exercising its discretion whether to grant or refuse an application for say will consider the special circumstances of the case and its unique requirement.”

32. Based on the above outlined principles, I have perused the notice of motion, the affidavit in support and the response thereto. In my view the Applicant has been able to explain the aspect of substantial loss as evidenced in the affidavit on the conditions precedent to support exercise of discretion by this Court under Order 42 Rule 6 of the Civil Procedure Rules, 2010, which is the cornerstone of exercise of discretion on such cases.

33. I therefore, in the interest of justice further invoke this court’s discretion and allow the applicant’s notice of motion application dated December 20, 2021 in the following terms;-a.The applicant be and is hereby granted leave to appeal out of time.b.There shall be stay of execution of the decree and or all consequential orders in Misc Comm No 1461 of 2012 pending the hearing and determination of appeal.c.The applicant to file and serve a memorandum of appeal alongside record of appeal within 90 days from todays ruling.d.Mention on January 26, 2023 to confirm compliance and take further directions on hearing of the appeal.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS7THDAY OFOCTOBER, 2022. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Ayieko counsel for RespondentCourt Assistant - Simon