[2022] KEHC 13980 (KLR)

Dhanjal v Habib (Civil Appeal E037 of 2022) [2022] KEHC 13980 (KLR) (Civ) (14 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13980 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E037 of 2022

M Thande, J

October 14, 2022

Between

Maliha Pawandeep Kaur Dhanjal

Applicant

and

Nahid Iqubal Kanji Habib

Respondent

Ruling

1. In her application dated March 29, 2022, the applicant seeks orders that:1. Spent

2. This honourable court be pleased to extend time to appeal and admit the applicant’s appeal out of time.

3. This honourable court be pleased to grant an interim order for stay of the lower court’s suit in KCMISC E432 of 2021 pending the hearing and determination of this application.

4. This honourable court be pleased to grant an interim order for stay of the lower court’s suit in KCMISC E432 of 2021 pending the hearing and determination of this Appeal.

5. This honourable court be pleased to grant an interim order for stay of the ruling and all consequential orders arising therefrom in the lower court’s suit in KCMISC E432 of 2021 pending the hearing and determination of this application.

6. This honourable court be pleased to grant an interim order for stay of the ruling and all consequential orders arising therefrom in the lower court’s suit in KCMISC E432 of 2021 pending the hearing and determination of the admitted appeal.

7. Costs of this application be provided for.

2. The applicant averred that she intended to appeal against the ruling and order of the hon principal kadhi A J Ishaq dated January 9, 2022, in KCMISC E432 of 2021. To this end, she applied and paid for certified copies of proceedings and ruling on February 9, 2022. The same were however not availed in good time to enable her prepare and serve the memorandum of appeal within the requisite time. The failure to appeal on time was not deliberate but was occasioned by the transfer of the hon kadhi and his replacement was away on official duty. Further that the only court assistant charged with typing proceedings- was on leave pending retirement. It is the applicant’s case that the intended appeal raises salient issues of fact and law and has overwhelming chances of success. She urged that the ruling and orders as well as the proceedings in the lower court be stayed to pave way for the hearing and determination of the appeal. According to the applicant, the respondent will suffer no prejudice if the orders sought are granted.

3. The respondent filed his replying affidavit sworn on June 17, 2022 opposing the application. The respondent stated that the impugned ruling was delivered on January 9, 2022 and that it was not until February 10, 2022 that the applicant paid for certified copies of the ruling and order, which is outside the prescribed period for filing an appeal. He asserted that the applicant is guilty of latches and urged the court not to grant the leave sought. Further that the applicant has been granted unlimited access to the children and will not be prejudiced if the orders sought are not granted nor will she suffer substantial loss. He urged that the application be dismissed with costs.

4. I have given due consideration to the application, the rival affidavits and submissions as well as the authorities cited. The issues that fall for determination are:i.Whether time to file appeal should be extended.ii.Whether stay of execution of the impugned ruling and order should be granted.iii.Whether stay of the proceedings in the lower court should be granted

Whether time to file appeal should be extended 5. The statutory period for filing an appeal in this court from a subordinate court is 30 days. This is stipulated in section 79g of the Civil Procedure Act which provides: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.

6. The proviso to section 79g of the act allows a party who gets caught up and is unable to file an appeal within the stipulated period, to seek extension of time. Such party must however satisfy the court that there is good and sufficient reason for not filing the appeal on time. An order for extension of time to file appeal is therefore discretionary.

7. In Stanley Kaiyongi Mwenda v Cyprian Kubai [2000] eKLR, the O’Kubasu, JA as he then was stated:And in Leo Sila Mutiso v Rose Hellen Wangari Mwangi - Civil Application No Nai 255 of 1997 (unreported) this Court in dealing with the issue of application for extension of time within which to file and serve notice of appeal and record of appeal stated inter alia:-"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 in general the matters which this court takes into account in deciding whether to grant an extension of time are first the length of the delay secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted and fourthly, the degree of prejudice to the respondent if the application is granted".

8. Although the decision whether or not to extend the time to appeal is discretionary, such discretion must be exercised judicially. The factors to be considered in an application for extension of the time to file an appeal were also set out by the Court of Appeal in Aviation Cargo Support Limited v St Mark Freight Services Limited[2014] eKLR as follows:For the court to exercise its discretion in favour of an applicant, the latter must demonstrate to the court that the delay in lodging the record of appeal is not inordinate and where it is inordinate the applicant must give plausible explanation to the satisfaction of the court why it occurred and what steps the applicant took to ensure that it came to court as soon as was practicable.

9. A party seeking extension of time to file appeal is required to demonstrate that the delay in lodging appeal was not inordinate and where it is, that there is good and sufficient reason why such delay occurred. The applicant must also explain the steps taken to ensure that he came to court as soon as was practicable.

10. In the present case, the impugned decision was made on January 9, 2022. The statutory period for filing appeal lapsed on February 8, 2022. Payment for certified copies of the proceedings and ruling was made on February 9, 2022 while the present application is dated March 29, 2022. There was therefore default on the part of the applicant. The delay is however for a period of about less than 2 months. Further some effort in coming to court is seen by the payment for the certified copies of the proceedings and ruling albeit a day after the lapse of time to file the appeal.

11. Article 159(2)(d) of the Constitution enjoins the court to administer justice without undue regard to procedural technicalities. In the case of Kamlesh Mansukhalal Damji Pattni v Director of Public Prosecutions & 3 others [2015] eKLR the Court of Appeal had this to say about technical lapses:The policy of the court is to hear and determine appeals on their merits and to eschew very rigid application of rules of procedure where such application will result in miscarriage or subversion of justice. The philosophy informing this policy is that rules of procedure, as hand-maidens of justice, are designed to help secure justice not to override it. Technical lapses therefore will in appropriate circumstances be excused to obviate injustice that may ensue therefrom. It has been rightly said that “courts are not slaves or robots of technical rules shorn of judicial discretion.”

12. It is not disputed that there was a delay in filing the appeal. My view however is that the delay is not so inordinate or unreasonably long as to deny the applicant the right to have the impugned decision reviewed by way of appeal. The court must administer substantive justice by allowing the intended appeal to be heard on merit.

Whether stay of execution of the impugned ruling and order should be granted 13. The applicant seeks stay of the impugned decision pending the hearing and determination of the intended appeal. In his ruling, the hon kadhi granted custody of the parties’ children to the respondent pending the hearing and determination of the suit. The applicant was granted unlimited access to the children and restrained from harassing or interfering with the children during the pendency of the suit.

14. Grant of stay of execution of an order pending appeal is discretionary. Order 42 rule 6 (2) contains the factors that the court is to consider in exercising its discretion in determining whether or not to grant a stay of execution:''(2) No order for stay of execution shall be made under subsection (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; and(b)such security as the court order for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant''

15. Beyond the requirements of order 42, this being a matter concerning children, the court is enjoined by the Constitution and of the Children Act, to consider the best interests of the children.

16. Article 53(2) of the Constitution provides:“A child’s best interests are of paramount importance in every matter concerning the child.The Children Act on the other hand provides at section 4(3) that:“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

17. Was the application for stay sought without considerable delay? The ruling appealed against was delivered on January 9, 2022. The application herein is dated March 29, 2022. As already indicated herein, although there was delay in filing the application, the delay was not unreasonable.

18. On the issue of substantial loss, the applicant, argued that she is clearly prejudiced as the respondent has restricted her to spend about 1 hour with the children, thereby grossly undermining her right and ability to spend time with her own children. This, she submits, is because the hon kadhi left it to the parties to interpret what unlimited access entails. The respondent countered this submission by contending that the applicant has not demonstrated the prejudice the children will suffer if stay is not granted.

19. As this matter concerns children, their interests supersede those of the parties. In considering an application for stay, the Court must weigh the interests of the children against those of the parties, and uphold the interests of the children. In the case of CKK v CMM [2016] eKLR, Achode, J (as she then was) stated:“In the circumstances of this case it is baby CMM and not the two protagonists who stands to suffer loss since we are not dealing with a material claim.

20. The applicant has not demonstrated to this court the substantial loss the children stand to suffer if the order for stay is not granted. Further, I have considered that the impugned orders are interim, pending the hearing and determination of the suit in the lower court. I have also considered further that the applicant was granted unlimited access to the children. In the premises, I am of the view that it would be in their best interests that the orders remain undisturbed, so that the children are not destabilized. In any event, if the respondent has misinterpreted the order and restricted the unlimited access of the applicant to the children, the correct forum to seek recourse is the lower court that made the order. Accordingly, I find and hold that the prayer for stay of execution in unmerited.

Whether stay of the proceedings in the lower Court should be granted 21. The applicant seeks stay of proceedings in the Kadhi’s court to pave way for the hearing and determination of the intended appeal. This is opposed by the respondent.

22. When this court stays proceedings in a lower court, it exercises its supervisory jurisdiction. Article 165 of the Constitution has conferred jurisdiction upon this court to supervise subordinate courts. Clauses (6) and (7) provide as follows:(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

23. In the exercise of its supervisory jurisdiction, the High Court may call for the record of any proceedings before a subordinate court, and make any order or give any directions as it deems appropriate including an order of stay of such proceedings. In so doing, the court must always be guided by the overriding objective which is to ensure the fair administration of justice. The supervisory jurisdiction of this court should also not be a tool for unduly interfering with the exercise by a court of competent jurisdiction, of its mandate. This court must resist the invitation to be used to curtail the expeditious disposal of suits in subordinate courts, in the name of exercising its supervisory jurisdiction.

24. Mwongo, J. considered the scope of the supervisory jurisdiction of the High Court in the case of Director of Public Prosecutions v Perry Mansukh Kansagara & 8others [2020] eKLR. The learned Judge listed the following safeguards to be observed by the High court in the exercise of its supervisory jurisdiction, and I concur:i.A balance has to be struck in the exercise of constitutional supervisory Jurisdiction to ensure there is no appearance that its object is to micro- manage the trial court’s independence in the conduct and management of its proceedings;ii.Ideally, constitutional supervisory jurisdiction should be exercised only after the parties are heard on the subject matter in question;iii.Supervisory jurisdiction should not be used where the option of revision is appropriate or applicable;iv.Supervisory jurisdiction should not be used as a shortcut for an appeal where circumstances for appeal clearly pertain and are more appropriate;v.Supervisory jurisdiction should be exercised to achieve the promotion of the public interest and public confidence in the administration of justice;

25. The reason the applicant has given for seeking stay of proceedings in the lower court is to pave the way for the hearing of the intended appeal. With respect, the continuance of the proceedings in the lower court cannot hinder the hearing of the intended appeal. I therefore find and hold that the Kadhi’s Court, being a court of competent jurisdiction should be allowed to carry out its constitutional and statutory mandate without undue interference from this court.

26. In the end and in view of the foregoing, I find that the application dated March 29, 2022 partially succeeds and the same is allowed on the following terms:

a.Leave is hereby granted to the applicant to file appeal out of time and the memorandum of appeal dated March 29, 2022 is hereby admitted.b.The record of appeal shall be filed by October 31, 2022 and in default, leave so granted shall automatically lapse and the appeal shall stand dismissed.c.Stay of execution of the orders of January 9, 2022 is hereby declined.d.Stay of the proceedings in the lower court is hereby declined.e.There shall be no order as to costs.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 14THDAY OF OCTOBER, 2022M. THANDEJUDGEIn the presence of: -.............for the applicant............for the Respondent...............Court Assistant