[2022] KEHC 1981 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

MISCELLANEOUS CIVIL CASE NO. E108 OF 2021

THE CHAIRMAN, THE SECRETARY BOARD OF GOVERNORS

KAIRI RUMWE SECONDARY SCHOOL.............................................APPLICANTS

VS

RAPHAEL FRANCIS MBUGUA...........................................................RESPONDENT

RULING

1. RUMWE SECONDARY SCHOOL has filed Notice of Motion under this Miscellaneous files. By that application dated 11th May, 2021 the applicant seeks stay of execution of the judgment of Thika Chief Magistrate’s Court Civil Case No. 41 of 2007, the subject of its intended appeal. The applicant further seeks by that application leave to file an appeal out of time of the judgment the subject of the intended appeal delivered on 11th September, 2018.

2. The application is opposed by the respondent, Raphael Francis Mbugua in the following grounds:-

a) That applicant is culpable of latches.

b) That no fault has been attributed to the Respondent hence the respondent should not be condemned to suffer for factors beyond his control.

c) That the applicant’s counsel is improperly on record and any and/or orders obtained the said counsel should be set aside ex debito justitiae.

3. I have considered the affidavit evidence and the grounds of opposition. The court is called upon to determine two issues. They are:- (i) should stay of execution of the judgment be granted; and (ii) has the applicant shown sufficient cause for not filing the appeal in time.

4. Stay of execution under Order 42 Rule 6 of the Civil Procedure Rules is granted by the court appealed to as well as the court appealed from. In other words, the jurisdiction to consider and grant stay of execution is only permitted to the court appealed to when such an appeal is in existence. Not otherwise, in this case the applicant has not yet filed an appeal to benefit from the provisions of Order 42 Rule 6 of the Civil Procedure Rules. Stay of execution is not granted in anticipation of an appeal to be filed. It follows that the prayer for stay of execution is fatally defective and is dismissed.

5. Section 79G of the Civil Procedure Act provides that an appeal from the subordinate court to the High Court shall be filed within a period of thirty (30) days from the date of decree or order appealed against. The proviso of that Section is in following terms:-

“Every appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against excluding from such period anytime which the lower court may certify as having been requisite for 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.”

6. That proviso clearly requires firstly, the one seeking for an appeal to be admitted out of time be an appellant; and secondly, that appellant must satisfy the court he has a good and sufficient cause for having failed to file an appeal out of time.

7. In this case, the applicant is not an appellant because there is no appeal filed. In the case JAMES NJAI GITHUI VS. EQUTIY BANK LIMITED (2020) eKLR the court considered that proviso and had this to say:-

“The proviso foresees a situation where an appellant has filed an appeal, then seeks to have it admitted out of time by an application seeking extension of time and explaining the reasons for delay. Hence I find the words ofEmukule Jin theGERALD LIMBINE case above necessary.

‘My understanding of the proviso to section 79G is that an applicant seeking “an appeal to be admitted out of time” must in effect file such an appeal, and at the same time seek the court’s leave to have such an appeal admitted out of the statutory period of time. The proviso does not mean that an intending appellant first seeks the court’s permission to admit a non-existent appeal out of the statutory period. To do so would actually be an abuse of the court’s process under section 79B which says:-

“Before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree part of a decree or order appealed against he may notwithstanding section 79C, reject the appeal summarily”’.

It seems to me therefore that it is not open to the court to exercise its discretion under the proviso to section 79G of the Civil Procedure Act except upon the existence and perusal of the appeal to be “admitted” not to be “filed out of time.” Admission presupposes that the appeal has been filed and will be “admitted” for hearing after a judge has established under Section 79B that there is “sufficient” ground for interfering with the decree part of a decree or order appealed against.”

8. The applicant in filing the application additionally failed to satisfy the requirement of sufficient cause for failing to file the appeal in time. The applicant filed the application and provided very detailed grounds for consideration for its prayer to file an appeal out of time and as much those grounds provided reasons why execution should be stayed, they did not give cause why the appeal was not filed in time. Most importantly, those grounds were not replicated in the affidavit in support of the application. There was no reason at all offered by the applicant in the supporting affidavit on why the court should grant leave to file appeal out of time. There being no sufficient reason given, the prayer to file an appeal out of time also fails.

9. In the end, the notice of motion dated 11th May, 2021 is hereby dismissed with costs.

10. This file shall henceforth be closed.

RULING DATED AND DELIVERED AT KIAMBU THIS 3RD DAY OF MARCH, 2022.

MARY KASANGO

JUDGE

Coram:

Court Assistant : Maurice

For applicant : - Magani

For Respondent : - N/A

RULINGdelivered virtually.

MARY KASANGO

JUDGE