[2023] KEHC 25792 (KLR)

Dreamline Express v Siku & another (Miscellaneous Application E311 of 2023) [2023] KEHC 25792 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25792 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Application E311 of 2023

DKN Magare, J

November 16, 2023

Between

Dreamline Express

Applicant

and

Roackwell Mbivya Siku

1st Respondent

Wedlyin Mbiva

2nd Respondent

Ruling

1. This is a ruling over a Miscellaneous Application dated 9/11/2023 seeking leave to appeal out of time among other prayers. The prayers sought are as follows: -a.Stay of execution in the consolidated cases Pending Appealb.The court be please to grant leave to the applicants to appeal out of time based on the two consolidated cases.c.The interested party be enjoined(sic) to this proceedings(sic) solely for purposes of this application.

2. I must confess that I am unable to understand the meaning of the last prayer above. The other prayers have been summarized to avoid any assault on the king’s language.

3. My understanding of enjoin is to instruct, urge, encourage spur, push, pressure, order, command, direct, tell, require, beseech, adjure, admonish or goad. What I was to call upon the interested party is not given. Even for arguments purposes if the applicant wanted to have me add them to the suit, no basis for doing such.

4. The Respondent was served and did not respond. This is for a good reason. There does not appear to be anything to be heard. To make matters worse the application deals with matters that actually do not exist, that is, e2468 and E2469 of 2014.

5. Nevertheless, I take it to mean CMCC 2469 and CMCC 2468 of 2014. The Application itself does not indicate from which decision the leave is to be given. The date of the decision to be appealed from is not patent on the application. It is slotted somewhere in the affidavits. it is clear it is an appeal from the judgment of the Hon Maureen Nabibya given on 4/8/2022 in Mombasa CMCC 2469 and CMCC 2468 of 2014.

6. The decision sought to be challenged was given in the presence of the parties. The respondent sought and was granted 30 days stay of execution at the time of delivery. There is no reason given for the delay in filing the appeal, leave alone the application for extension of time within which to appeal.

7. A copy of judgment is not necessary where the dispute is only in quantum. The matter will only be whether the award is so high or so low as to amount to an erroneous estimate of damages. Section 79 G of the Civil Procedure Act provides as doth: -“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.”

8. A copy of judgment is not necessary at the time of filing the memorandum of appeal. In any case, the court below has not certified the time required for preparation and delivery of the judgment. The ground is thus neither plausible nor tenable.

9. The applicant failed to give a plausible reason for the delay. In the case ofJohn Martin Muchiri Mugo v British-American Insurance Company (K) Limited [2018]eKLR, justice P.J.O. OTIENO, stated as doth: -“From the narrative, the applicant allegedly became aware of the delivery of judgment on 22/6/2022. The Applicant sat on their rights till November, 2022 when they filed this application. There is no plausible explanation for the delay. I am thus not satisfied that there is explainable delay.From the record, what seems to have woken the Applicant is the filing of the party and party bill of costs on 30/8/2022 and served on 6/9/2022 as per annexture JMM2 in the Respondent’s affidavit. It is not ease to drive out a party from the seat of justice. However, a party who watches the seat of Justice rained on and only wakes up when someone else wants to seat on it, he does not call for mercy but condemnation. Equity only aids the vigilant. The Applicants were totally indolent. There is not explanation for the long delay.”

10. The Applicant delayed for over one year and one month. There is absolutely no evidence that judgment was applied for. A delay of over one year and one months has not been explained and as such a delay is unexplained, inexcusable and inordinate.

11. A copy of judgment is not necessary at the time of filing the memorandum of appeal. In any case, the court below has not certified the time required for preparation and delivery of the judgment. The ground is thus neither plausible nor tenable.

12. The applicant failed to give a plausible reason for the delay. In the case of John Martin Muchiri Mugo v British-American Insurance Company (K) Limited [2018] eKLR, justice P.J.O. Otieno, stated as doth: -“From the narrative, the applicant allegedly became aware of the delivery of judgment on 22/6/2022. The Applicant sat on their rights till November, 2022 when they filed this application. There is no plausible explanation for the delay. I am thus not satisfied that there is explainable delay.From the record, what seems to have woken the Applicant is the filing of the party and party bill of costs on 30/8/2022 and served on 6/9/2022 as per annexture JMM2 in the Respondent’s affidavit. It is not ease to drive out a party from the seat of justice. However, a party who watches the seat of Justice rained on and only wakes up when someone else wants to seat on it, he does not call for mercy but condemnation. Equity only aids the vigilant. The Applicants were totally indolent. There is not explanation for the long delay.”

13. Without a valid reason, this court has no jurisdiction to extend time. It is not manna to dish out. It is exercise of discretion. Unless the court is properly moved, it has no power to exercise discretion. It is not by whim but though judicious consideration that such an application is considered.

14. The factors to consider in dealing with such an application are: -a.The length of delay.b.The reason for delay.c.The animus of the applicant.d.The prejudice to the Respondent.

15. The delay is inordinate. Further the Applicant has not explained the delay. It is my considered opinion that the 4 factors above are sequential. Therefore, one must fulfil each as you move to the next. If the delay is inordinate, in may not be necessary to go to the reason for delay. When the delay is reasonable, there must be a real and genuine reason for delay. In this case the Application appears meant to forestall a lawful process of execution of a valid decree of the court.

16. Where there is doubt, either way, the court can then exercise discretion one way or another. The court cannot find that the delay is inexcusable, inordinate and no reason is given and then, out of sheer whims and fiat, extend time. That makes litigation unpredictable and unending.

17. In this matter, the reasons for the delay are strangely not given. The Applicant was presumptive that the court will give leave to Appeal out of Time. Secondly for certification to be done under section 79 G, there must be a request for decree or judgment. Under section 2 of thecivil procedure Rules, a decree is defined as doth: -“decree” means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final; it includes the striking out of a plaint and the determination of any question within section 34 or section 91, but does not include—a.any adjudication from which an appeal lies as an appeal from an order; orb.any order of dismissal for default:Provided that, for the purposes of appeal, “decree” includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up;Explanation. — A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.

18. An appeal can thus be made even if a formal decree had not been formally extracted. A decree includes a judgment. The only thing the Applicant could have done is to pay and collect the judgment, which was available from March 2023.

19. The application is not supported. The application is not a genuine once. In Salome Alice Akinyi v Aridempta Veronica Ooko & another [2019] eKLR, Justice J Kamau stated as follows regarding the issue of vigilance: -“24. It is correct as the Respondents submitted that “equity aids the vigilant and not the indolent.” However, it was the view of this court that although the Applicant had delayed in filing her appeal, the delay of four (4) months in bringing the application seeking leave to file an application out of time was not inordinate.”

20. The applicant has not shown that he deserving of the orders sought since the delay is inexcusable, inordinate and unexplained. Litigation must come to an end. InKenya Commercial Bank Limited v Benjoh Amalgamated Limited [2017] eKLR, the Court of Appeal, Ambuye, Makhandia & M’inoti, JJA stated as doth: -The doctrine is grounded on public interest and thus transcends the parties’ interests in a suit. Public interest requires or demands that litigation must at some point come to an end. In the Maina Kiai case (supra), the Court quoted with approval the Indian Supreme Court in the case of Lal Chand v Radha Kishan, AIR 1977 SC 789 where it was stated;“The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded in equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue.

21. Though referring to res judicata, the underlying principle is that parties must know that they are no longer in court. Parties should be in court for years as if they have rented a space in court. There are parties who don’t want cases to end. They have been in court and don’t want to leave.

22. In Nzoia Sugar Company Limited v West Kenya Sugar Limited [2020] eKLR, while addressing the court on inordinate delay in prosecuting the suits, the court stated as doth: -“6. In Invesco Assurance Co. Ltd vs. Oyange Barrack [2018] eKLR, regarding the exercise of discretion, the court stated:“11. Nonetheless, Article 159 of the Constitution and Order 17 Rule 2(3) gives the court the discretion to dismiss the suit where no action has been taken for one year and on application by a party as justice delayed without explanation is justice denied and delay defeats equity. That discretion must be exercised on the basis that it is in the interest of justice, regard being had to whether the party instituting the suit has lost interest in it, or whether the delay in prosecuting the suit is inordinate, unreasonable, inexcusable, and is likely to cause serious prejudice to the defendant on account of that delay.”7. What then is the threshold? In Argan Wekesa Okumu vs. Dima College Limited & 2 others [2015] eKLR, the court considered the principles for dismissal of a suit for want of prosecution, where it stated as follows: -“The principles governing applications for dismissal for want of prosecution are well settled and have been established by a long line of authorities. The Applicant must show that the delay complained of is inordinate, that the inordinate delay is inexcusable and that the Defendant is likely to be prejudiced by such delay. As such the 3rd Defendant in this case must meet the burden of proof in seeking the dismissal of the Plaintiff’s case for want of prosecution see the case of Ivita vs. Kyumbu (1984) KLR 441. Further to this, the decision of whether or not to dismiss a suit is discretionary and this Court must exercise such discretion judiciously. Additionally, each case must be decided on its own facts keeping in mind that a court should strive to sustain a suit where possible rather than prematurely terminating the same.”

23. In Nilesh Premchand Mulji Shah & Another t/a Ketan Emporium vs. MD Popat and others & another [2016]eKLR, the court stated as follows:“11. Nonetheless, Article 159 of the Constitution and Order 17 Rule 2(3) gives the court the discretion to dismiss the suit where no action has been taken for one year and on application by a party as justice delayed without explanation is justice denied and delay defeats equity. That discretion must be exercised on the basis that it is in the interest of justice regard being had to whether the party instituting the suit has lost interest in it, or whether the delay in prosecuting the suit is inordinate, unreasonable, inexcusable, and is likely to cause serious prejudice to the defendant on account of that delay. This is what the case of Ivita vs. Kyumbu [1984] KLR 441 espoused that:“The test applied by the courts in the application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is, whether justice can be done despite the delay. Thus, even if the delay is prolonged, if the court is satisfied with the plaintiff’s excuse for the delay, and that justice can still be done to the parties, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest time. It is a matter of and in the discretion of the court.”

24. While addressing the issue of inordinate delay, hon justice Yano stated as doth in the case of Julius Mutembei Muchiri v Sammy Gitonga Mutindwa [2022]eKLR: -“Where a party is aggrieved and wishes to pursue an appeal, it would be fair to exercise discretion in his favour and especially where the delay in filing the appeal is not inordinate and the adverse party will not be prejudiced in any way. Discretion of the court must always be exercised judiciously. The applicant although having expressed his intentions to be heard by this court on appeal, it is my considered opinion that he ought not be given an opportunity to pursue the appeal since the delay is quite inordinate. The respondent has clearly elaborated that four years later in 2019, the applicant filed an application to set aside the judgement of 2015 but having not demonstrated to the court with any substantial reasons the application was dismissed. That notwithstanding, the applicant filed another application at the High Court being Miscellaneous Civil E003 of 2021 seeking leave to appeal out of time and the same was withdrawn, hence this application seeking leave to file out of time. In my considered view, the applicant has slept on his rights to challenge the judgement for too long and has failed to explain the inordinate delay. Equity aids the vigilant and not the indolent.”

25. This is a proper application to dismiss in limine. It is accordingly dismissed. The respondent did not oppose the same, each party to bear its costs.

Determination 26. In the circumstances I make the following orders: -a.The Application dated 22/6/2023 lacks merit and is accordingly dismissed with no order as to costs.b.The file is closed.

DELIVERED, DATED and at MOMBASA ON THIS 16TH DAY OF NOVEMBER,2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGE