[2022] KEHC 15229 (KLR)

Chege & another v Michubu & another (Miscellaneous Civil Application E502 of 2021) [2022] KEHC 15229 (KLR) (Civ) (10 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15229 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E502 of 2021

CW Meoli, J

November 10, 2022

Between

Laban Chege

1st Applicant

Gulzar Ahmed Motors Limited

2nd Applicant

and

Deanley Mwendwa Michubu

1st Respondent

RK (Minor Suing Through Next Friend)

2nd Respondent

Ruling

1. For determination is the motion dated October 7, 2021 by Laban Chege and Gulzar Ahmed Motors Limited (hereafter the 1st and 2nd applicant/applicants) seeking inter alia leave to the applicants to lodge a memorandum of appeal out of time against the judgment and decree entered against the applicants in Nairobi Milimani CMCC No 7116 of 2015 in favour of Deanley Mwendwa Michubu and RK(hereafter the 1st and 2nd respondent/respondents); and stay of execution of the judgment and decree in Nairobi Milimani CMCC No 7116 of 2015 pending hearing and determination of the intended appeal. The motion is expressed to be brought primarily under section 3A, 79G & 95 of the Civil Procedure Act (CPA) and order 42 rule 6(1) of the Civil Procedure Rules (CPR).

2. The grounds on the face of the motion are amplified in the supporting affidavit sworn by 1st applicant. The gist of his affidavit is that counsel on record had contacted and informed him that judgment in Nairobi Milimani CMCC No 7116 of 2015 was delivered on July 18, 2021 and being aggrieved thereby the applicants wish to appeal. That the time within which to lodge an appeal has since lapsed and that delay in filing the appeal was occasioned by the fact that his counsel had difficulties in locating him. He promises zeal in expediting the eventual appeal and willingness to provide security for the entire decretal sum pending the outcome thereof. Further he asserts that the intended appeal is arguable and raises pertinent points of law with an overwhelming chance of success and the respondents will not suffer any prejudice incapable of being compensated by way of costs. And that unless stay is granted the applicants stand to suffer prejudice as the applicants will not be able to recoup the decretal sum if paid over to the respondents in the event of the appeal succeeding.

3. The respondents oppose the motion through a replying affidavit sworn by the 1st respondent. She starts by asserting that the judgment of the lower court was delivered on September 1, 2020 and not July 18, 2021 as stated by the 1st applicant and attacks the motion as lodged after inordinate delay , judgment having been delivered on September 1, 2020. She asserts further the delay has not been satisfactorily explained; that the 1st applicant has not demonstrated any attempts allegedly made by his counsel to reach. In her view the motion is undeserved and was prompted by the respondents’ demands January 18, 2021 and August 16, 2021 for payment of the decretal sum and asserts the intended appeal is not arguable and has no chance of success , hence the motion ought to be dismissed with costs.

4. The motion was canvassed by way of written submissions. Counsel for the applicants anchored her submissions on the provisions of order 42 of the Civil Procedure Rules, several decisions including Global Tours & Travels Ltd, Nairobi HC Winding Up Cause No 43 of 2000, Judicial Commission of Inquiry into the Goldenberg Affair & 3 others v Kilach[2003] KLR to support the motion and to assert that the draft memorandum of appeal raises issues that merit this court’s consideration on appeal. Addressing the court on stay of execution pending appeal, counsel called to aid the decisions in Butt v Rent Restriction Tribunal[1982] KLR 417, National Industrial Credit Bank Limited v Aquinas Francis Wasike & another Nairobi Civil Application No 238 of 2005 and others to argue that if stay of execution is not granted the intended appeal will be rendered nugatory and the applicants will suffer irreparable loss and damage. He defended suitability of security in the form of a bank guarantee asserting that the applicants are apprehensive that they will not recover the any monies that may be paid to the respondents. And that owing to the adverse effects of the Covid-19 pandemic, the applicants’ insurer is financially constrained. Counsel cited Water Resources Mangement Authority v Krystalline Salt Limited [2018] eKLR and Shanzu Beach Resorts Limited v Crown Marble & Quartz [2020] eKLR in support of the submission.

5. Counsel for the respondents on his part anchored his submissions on the provisions of section 79G of the Civil Procedure Act and the decision in Nicholas Kiptoo Korir Arap Salat v IEBC & 7 others[2014] eKLR to contend that the applicants have not tendered any evidence that constitutes a satisfactory explanation for the inordinate delay in filing the appeal. In response the applicants submission on stay of execution pending the intended appeal, counsel cited the provision of order 42 of the Civil Procedure Rules to contend that the applicants have not demonstrated substantial loss and reiterated the applicants’ inordinate delay in bringing the motion. Several decisions including Dilpack Kenya Limited v William Muthama Kitonyi and High Court Civil Appeal No E327 of 2021 Jessikay Enterprises Ltd v George Kahoto Muiruri were cited in support of the submission that the security offered was unsuitable as the applicants had access to the funds and could utilize them to the respondents detriment. The court was urged to dismiss the motion.

6. The court has considered the rival affidavit material and submissions made in respect of the motion. One of the prayers in the motion seeks stay of execution pending hearing and determination of the intended appeal. However it is evident on a plain reading of order 42 rule 6(1) of theCPR upon which the motion is premised, that an order to stay execution pending appeal presupposes the existence of an appeal. The filing of an appeal is a condition precedent to the exercise of this court’s appellate jurisdiction under order 42 rule 6 (1) of the Civil Procedure Rules. Although the provision does not expressly say so, this can be inferred from the rule. Further, an analogy can be drawn from order 42 rule 6 (4) of the Civil Procedure Rules which states that an appeal is deemed filed in the Court of Appeal when the notice of appeal has been given. Equally, order 42 rule 6 (6) of the Civil Procedure Rules states:“Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.” (Emphasis added).

7. It would seem therefore that the invocation of the jurisdiction of this court under order 42 rule 6 (1) or 6 (6) of the Civil Procedure Rules must be preceded by the filing of an appeal, or compliance with the procedure for filing an appeal, in this case a memorandum of appeal (See order 42 rule 1 of the Civil Procedure Rules). Until the memorandum of appeal is filed, the court may be acting in vacuo by considering the applicants prayer for stay of execution pending a non-existent appeal. The Court of Appeal in Abubaker Mohamed Al-Amin v Firdaus Siwa Somo[2018] eKLR while citing with approval the decision of the High Court in Rosalindi Wanjiku Macharia vs James Kiingati Kimani (Suing as the Legal Representative of the Estate of Martin Muiruri (Deceased))[2017] eKLR concurred and adopted the foregoing reasoning.

8. Earlier, the Court of Appeal in the case of Equity Bank -Vs- Westlink MBO Limited [2013] eKLR while commenting on rule 5 (2) (b) of the Court of Appeal Rules, whose wording is substantially similar to order 42 rule 6 (1) of the Civil Procedure Rules, and on order 42 rule 6 (6) of Civil Procedure Rules, left no room for doubt that an application for stay of execution pending appeal could only be entertained before it after the filing of an appeal or a notice of intended appeal. (See also Balozi Housing Co-operative Society Limited -vs- Captain Francis EK Hinga [2012] eKLR). Order 42 rule 1;“(1)Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.(2)The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.”

9. In this case, an appeal is yet to be filed and there is therefore no basis upon which this court could exercise its appellate jurisdiction under the said provision in a miscellaneous matter. If the applicants desired to seek an order to stay execution alongside the prayer for the late admission of their appeal, they ought to have first filed the memorandum of appeal in a proper appeal and the relevant application. In my considered view, the words that “an appeal may be admitted out of time” in section 79G, appears to admit both retrospective and prospective applications. So that leave under the section may be sought before or after a memorandum of appeal is filed. However, it may be more prudent for a party who also seeks stay of execution in the same motion for leave to appeal out of time to have filed the memorandum of appeal in advance. In the circumstances, the prayer seeking stay of execution of the judgment and decree in Nairobi Milimani CMCC No 7116 of 2015 pending hearing and determination of the intended appeal has no legal anchor and is consequently disallowed.

10. Turning now to the prayer seeking leave to appeal out of time, the power of the court to enlarge time for filing an appeal out of time is expressly donated by section 79G, as well as generally, by section 95 of the Civil Procedure Act. The deponent of the affidavit in support of the motion asserts that delay in filing the appeal was occasioned by the fact that counsel on record had difficulties in locating him. The 1st respondent disputed the assertion and stated that no good explanation has been proffered in respect of the delay.

11. Section 79G of the Civil Procedure Act provides that:“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.”

12. The principles governing leave to appeal out of time are settled. The successful applicant must demonstrate “good and sufficient cause” for not filing the appeal in time. In Thuita Mwangi v Kenya Airways [2003] e KLR, the Court of Appeal while considering rule 4 of theCourt of Appeal Ruleswhich was inpari materia with section 79G of the Civil Procedure Act, reiterated its decision in Mutiso v Mwangi [1997] KLR 630 as follows:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that general the matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of delay; secondly, the reason for the delay; thirdly (possibly) the chances of appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent of the application is granted.”

13. While the discretion of the court is unfettered, a successful applicant is obligated to adduce material upon which the court should exercise its discretion, or in other words, the factual basis for the exercise of the court’s discretion in his favor. On the question of the exercise of judicial discretion, the Supreme Court observed in the case of Telkom Kenya Limited v John Ochandaand 996 others[2015] eKLR that;-“In instances where there is delay in filing the notice of appeal, this court has inherent jurisdiction to admit such appeal, provided sufficient explanation is proffered for the cause of delay. The design and objective of the Supreme Court Rules is to ensure accessibility, fairness and efficiency in relation to this court. Parties should comply with the procedure, rather than look to the court’s discretion in curing the pleadings before it. This court’s position is that the circumstances of each case are to be evaluated, as a basis for arriving at a decision to intervene, in instances where full compliance with procedure has not taken place….It is this court’s position of principle that prescriptions of procedure and form should not trump the primary object of dispensing substantive justice to the parties. However, the court will consider the relevant circumstances surrounding a particular case and will conscientiously ascertain the best course. It is to be borne in mind that rules of procedure are not irrelevant but are the handmaiden of justice that facilitate the right of access to justice in the terms of article 48 of the Constitution….”See also Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 others [2019] eKLR.

14. The Supreme Court in the case of Nicholas Kiptoo Korir Arap Salat v IEBC and 7 others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter aliathat:“(T)he underlying principles a court should consider in exercise of such discretion include;1. Extension of time is not a right of any 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 for 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 a case- to-case basis;4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;5. Whether there will be any prejudice suffered by the respondent if the extension is granted;6. Whether the application has been brought without undue delay.7. ......”See alsoCounty Executive of Kisumu v County Government of Kisumu & 8others [2017] eKLR.

15. For starters, the date of delivery of judgment as deposed by the 1st applicant was contested by the 1st respondent. The 1st applicant in his affidavit material deposed that judgment was delivered on July 18, 2021. The 1st respondent disputed the deposition as misleading, pointing out that judgment was delivered on September 1, 2020. In the draft memorandum of appeal annexure “LC 2” attached to the 1st applicant’s affidavit, the judgment sought to be appealed is stated to have been delivered on September 1, 2020. Further a copy of the judgment in Nairobi Milimani CMCC No 7116 of 2015 (annexure “DMM-1”) attached to the 1st respondent’s affidavit shows the judgment was delivered on September 1, 2020. Thus, it is not immediately clear why the applicants asserted the wrong delivery date.

16. That said, the applicants’ motion was admittedly filed on October 9, 2021. The delay in this matter is more than a year and appears inordinate. The Court of Appeal in Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 others [2019] eKLR addressed itself on the question of delay as follows;-“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be explained hence a plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There have to be valid and clear reasons, upon which discretion can be favourably exercisable……”

17. In the circumstances of this matter, the delay has not been adequately explained. It is not enough to allege as the applicant did that his counsel had difficulty tracing him. What kind of difficulty, occasioned by what, and what efforts were made on both sides? In this age of instant electronic communication, no party can be taken seriously when he claims difficulty in communication with his counsel for over a year. A party seeking extension of time must not be seen to presume on the court’s discretion. Further, it is trite that cases belong to the litigants and the onus was on the applicants to follow up with his counsel on the progress of his case. The court therefore agrees with the respondents that indeed the applicants have not demonstrated good and sufficient cause why they failed to file the memorandum of appeal within prescribed time.

18. In the circumstances, the 1st respondent may be justified when he asserts that the applicants were roused from slumber by the threat of execution proceedings. In the circumstances, the court is not satisfied that the applicants have demonstrated good and sufficient cause for failing to file their appeal within the prescribed time. In the result, it seems to me that the justice of the matter lies in dismissing the motion with costs to the respondents.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 10TH DAY OF NOVEMBER 2022. C.MEOLIJUDGEIn the presence of:For the Applicants: Ms. GulenywaFor the Respondents: Mr. MuseveC/A: Carol