[2022] KEHC 15103 (KLR)

Duba & another v Wairimu (Miscellaneous Civil Application E088 of 2021) [2022] KEHC 15103 (KLR) (9 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15103 (KLR)

Republic of Kenya

In the High Court at Nyeri

Miscellaneous Civil Application E088 of 2021

JN Njagi, J

November 9, 2022

Between

Kadija Duba

1st Appellant

Attorney General

2nd Appellant

and

Teresa Wairimu

Respondent

Ruling

1. The applicants have filed an application dated November 17, 2021 under section 3A, 79G and 95 of the Civil Procedure Act, section 27 of the Limitations of Actions Act and order 37 of the Civil Procedure Rules seeking leave to file an appeal out of time against the judgment in Karatina PMCC No 166 of 2010 delivered on October 3, 2019. The applicants further seek for orders of stay of execution of the decree and judgment in the said case pending the hearing and determination of the intended appeal.

2. The application was opposed by the respondent vide her replying affidavit sworn on the March 11, 2022.

1st Applicant’s Case - 3. The application was supported by the affidavit of the 1st applicant who deposes that the reason of her failure to file the appeal within the stipulated time is because she was not served with the documents pertaining to the case and nor was she given a chance to participate in the proceedings or adduce evidence. That she was only served with the judgment on November 15, 2021.

4. The 1st applicant states that the delay caused by herself is a technicality and she urges the court to do substantive justice between the parties without regard to technicalities which the respondent caused in an attempt to deny her constitutional rights. She further contends that the orders obtained were defective as they were obtained fraudulently by making false statements that the respondent was detained for a whole day which statement was proved wrong through the evidence of the 2nd applicant and Corporal Kassim Nato which showed that she was detained from 1340 Hours to 1820 hours and released under section 22 of the Criminal Procedure Code and amicable negotiations with the 1st applicant.

5. The 1st applicant states that she is apprehensive that the respondent shall execute against her vide a proclamation notice dated November 12, 2021 seeking to attach her goods. That the proclamation was set to lapse on November 19, 2021 and she was apprehensive that if the orders sought are not granted the respondent’s auctioneers will attach her goods thereby rendering the instant application and intended appeal nugatory. She further contends that if the execution is allowed to proceed, she would be rendered bankrupt and homeless thereby occasioning her substantial loss and damage.

6. The 1st applicant urges the court to grant her conditional stay of execution and to extend time within which she can file her appeal. She further states that no prejudice shall be suffered by the respondent if the application is allowed.

The Respondent’s Case - The 1st Applicant’s submissions - 7. I have perused the submissions for the 1st applicant and note that they do not address her application to file an appeal out of time or stay of execution. She submits that the 2nd applicant ought to bear the burden of paying the decretal sum of Ksh 237,847/-.

The Respondent’s Submissions - 8. The respondent reiterated what she deponed in her replying affidavit and submits that the instant application has been accustomed to inordinate and inexcusable delay of over 26 months. Further that the 1st applicant has not explained the reasons for the delay. That though the court has jurisdiction to extend time, such discretion must be exercised on deserving circumstances and cannot be exercised in favour of an indolent litigant.

9. The respondent further submits that the instant application is an abuse of the court process as the 1st applicant did not dispute the debt. That upon proclamation by the auctioneers, she made a proposal on how to settle the debt. Therefore, that she cannot now be heard to turn around and seek to challenge the same debt which she undertook in wiring to settle. The respondent prays that the application be dismissed but in the event the court is inclined to grant stay of execution orders she urges the court to order the 1st applicant to deposit the decretal sum of Ksh 237,847 in court.

Analysis and Determination - 10. The issues for determination herein are:a.Whether the court should exercise its discretion to grant the 1st applicant leave to file her appeal out of time; andb.Whether the 1st applicant has met the prerequisite for grant of stay of execution pending appeal.

Whether the court should exercise its discretion to grant the 1st applicant leave to file her appeal out of time - 11. Section 79G of the Civil Procedure Act states:"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 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. It is clear from the wording of section 79G of the Civil Procedure Act, that before the court considers extension of time, the applicant must satisfy the court that she has good and sufficient cause for filing the appeal out time. This principle was stated in the case of Diplack Kenya Limited vs William Muthama Kitonyi [2018]eKLR where it was held that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.

13. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others (2014) eKLR set out the principles applicable in an application for leave to appeal out of time. The court stated inter alia that: -“The underlying principles a court should consider in exercise of such discretion should include: -a.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;b.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;c.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;e.Whether there will be any prejudice suffered by the respondent if the extension is granted;f.Whether the application has been brought without undue delay.

14. Similarly in the case of Paul Musili Wambua v Attorney General & 2 Others [2015]eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:-“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”

15. The 1st applicant has not explained her reason for delay in filing her appeal. She has stated in her affidavit that the delay occasioned by her is a technicality and urges the court to do substantive justice without undue regard to any technicalities. I have perused the court record and noted that judgment was delivered on October 3, 2019. The instant application was filed on November 22, 2021. This is a duration of over 2 years since judgment was delivered. I find that the 1st applicant has not explained satisfactorily the reasons for her delay. Furthermore, the instant matter was filed in 2010 and judgment was delivered in 2019 thus it is an old matter. The respondent would be prejudiced as this would occasion a delay from her enjoying the fruits of the judgment. Extension of time to file an appeal is an equitable right and equity does not aid the indolent, which the 1st applicant has demonstrated here. I disagree with the 1st applicant that the delay occasioned by herself is a technicality. The law is very clear that a party ought to satisfactorily explain her reasons of delay to warrant the orders of extension of time within which to file an appeal. In this regard, I am not convinced that the 1st applicant is deserving of extension of time within which to file her appeal.

Whether the 1st applicant has satisfied the conditions for stay of execution pending appeal - 16. As a rule of thumb, an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under order 42 rule 6(2) Civil Procedure Rules. Order 42 rule 6 of the Civil Procedure Rules stipulates:-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 orders set aside.2. No order for stay of execution shall be made under sub rule 1 unless:-a.The Court is satisfied that substantial loss may result to the 1st 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.

17. Thus, under order 42 rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:(a)Substantial loss may result to him/her unless the order is made;(b)That the application has been made without unreasonable delay; and(c)The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.

18. These principles were stated in Butt vs Rent Restriction Tribunal (1979) where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that:-1. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.2. Secondly, 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 the appeal court reverse the judge’s discretion.3. Thirdly, 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.4. Finally, the court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under order XLI rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.

Substantial Loss - 19. Under this head, an applicant must clearly state what loss, if any, they stand to suffer. In the case of Shell Ltd vs Kibiru and Another[1986] KLR 410 Platt JA set out two different circumstances when substantial loss could arise as follows: -“The appeal is to be taken against a judgment in which it was held that the present respondents were entitled to claim damages….It is a money decree. An intended appeal does not operate as a stay. The application for stay made in the high court failed because the gist of the conditions set out in order XLI Rule 4 (now order 42 Rule 6(2)) of the Civil Procedure Rules was not met. There was no evidence of substantial loss to the applicant, either in this matter of paying the damages awarded which would cause difficulty to the applicant itself, or because it would lose its money, if payment was made, since the Respondents would be unable to repay the decretal sum plus costs in two courts….”The learned judge continued to observe that:-“It is usually a good rule to see if order XLI rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial Loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the respondents should be kept out of their money.

20. Earlier on, Hancox JA in his ruling observed that:-“It is true to say that in consideration [sic] an application for stay, the court doing so must address its collective mind to the question of whether to refuse it would…render the appeal nugatory.This is shown by the following passage of Cotton LJ in Wilson vs Church (No 2) (1879) 12 ChD 454 at page 458 where he said:-“I wish to state my opinion that when a party is appealing, exercising his undoubtedly right of appeal, this court ought to see the appeal, if successful, is not rendered nugatory. “As I said, I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given. Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause.”

21. The 1st applicant has not demonstrated the loss she will suffer if the decretal sum is paid to the respondent. She has only stated in her affidavit that if execution proceeds she will be rendered bankrupt and homeless thereby occasioning her substantial loss and damage. The respondent contends that the 1st applicant wrote to the auctioneers making a proposal as to how to pay the debt though she has not annexed any such letter. All the same, I find that the 1st applicant has not demonstrated the loss she will suffer if the decretal sum is paid to the respondent.

Whether the application has been made without unreasonable delay - 22. As observed above the instant application was brought after a lapse of more than 2 years after delivery of the judgment. Notably, the 1st applicant has not explained the delay in filing the application. I find that the application has been made with unreasonable delay which is inordinate and inexcusable.

Security of Costs - 23. The applicant ought to satisfy the condition of security. In the persuasive case of Gianfranco Manenthi & Another vs Africa Merchant Assurance Co Ltd [2019] eKLR the court observed that:“The applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition, a party who seeks the right of appeal from a money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the decree in order to enjoy the fruits of his judgment in case the appeal falls.Further order 42 should be seen from the point of view that a debt is already owed and due for payment to the successful litigant in a litigation before a court which has delivered the matter in his favour. This is therefore to provide a situation for the court that if the appellant fails to succeed on appeal there could be no return to status quo on the part of the plaintiff to initiate execution proceedings where the judgment involves a money decree. The court would order for the release of the deposited decretal amount to the respondent in the appeal….Thus, the objective of the legal provisions on security was never intended to fetter the right of appeal. It was also put in place to ensure that courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals. In any event, the issue of deposit of security for due performance of decree is not a matter of willingness by the applicant but for the court to determine. Counsel for the applicant submitted that he is ready to provide a bank guarantee as security for due performance of the decree.”

24. Similarly in Arun C Sharma vs Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 Others [2014] eKLR the court stated that:“The purpose of the security needed under order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…..Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under order 42 rule 6 of the Civil Procedure Rules acts as security for the due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”

25. From the above persuasive decisions, it is clear that the issue of security is discretionary and it is upon the court to determine the same. Notably, the 1st applicant has not offered to give any security to secure the performance of the decree.

26. Additionally, the right of appeal must be balanced against an equally weighty rigid right of the plaintiff to enjoy the fruits of the judgment delivered in his favour. In the case of Mohammed Salim t/a Choice Butchery v Nasserpuria Memon Jamat (2013) eKLR the court upheld the decision of Portreitz Maternity v James Karanga Kabia Civil Appeal No 63 of 1991 and stated that:“That right of appeal must be balanced against an equally weighty rigid right that of the plaintiff to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depriving the plaintiff of that right.”

27. The court in granting stay has to carry out a balancing act between the rights of the two parties. The question then begs as to whether there is just cause for depriving the respondent her right of enjoying her judgment. The respondent states that the applicants have not satisfied the conditions to warrant them stay of execution. The 1st applicant on the other hand states that the appeal will be rendered nugatory if the orders sought are not granted and that the applicant stands to suffer irreparable loss.

28. In my view and considering the balance of interests in the case, it will be more prejudicial to the respondent than the 1st applicant for me to grant stay of execution. This is because the matter is an old one that was instituted in 2010 and judgment delivered in 2019. The respondent is yet to enjoy the fruits of the judgment.

29. Consequently, I find no merit in the application dated November 17, 2021 and dismiss it with costs to the respondent.

Signed by:J. N. NJAGIJUDGEDELIVERED, DATED AND SIGNED AT NYERI THIS 9TH DAY OF NOVEMBER, 2022. HON. JUSTICE M. MUYAJUDGEIn the presence of:Present: for 1st Applicant…………………………………for 2nd ApplicantCourt Assistant : Kinyua30 days R/A.