[2022] KEHC 10783 (KLR)

EMM v JNN (Miscellaneous Civil Application 81 of 2021) [2022] KEHC 10783 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10783 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Civil Application 81 of 2021

EKO Ogola, J

June 9, 2022

Between

EMM

Applicant

and

JNN

Respondent

Ruling

1. The application before me is dated July 5, 2021 and has been brought pursuant to sections 1 A, 1B and 3A of the Civil Procedure Act, Order 42 rule 6(1) and (2), order 50 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, 2010 , article 159 of the Constitution of Kenya,2010 and all other enabling provisions of the law. The applicant seeks;i.Spentii.That this honourable court be pleased grant stay of proceedings in Eldoret CMCC Divorce Cause No. 29 of 2020 J N N vs E M M pending the hearing & determination of this application and thereafter pending the hearing and determination of the intended Appeal.iii.Leave be and is hereby granted to the Applicant to file an appeal out of time against judgment delivered on April 30, 2021, by Hon Menya, S.R.M in Eldoret CMCC Divorce Cause No. 29 of 2020 J N N vs E M M.iv.Costs of this application be provided for

2. The application is premised on the following grounds;(a)The subordinate court (Hon Menya SRM) delivered its judgment in Eldoret Chief Magistrate Court Divorce Cause Number 29 of 2020 J N N v E M M on April 30, 2021 allowing the petition of Divorce and issuing Decree Nisi(b)The Applicant is aggrieved by the said judgment and wishes to lodge an appeal against the same(c)The Applicant’s intended Appeal is arguable with a high probability of success(d)The statutory timeline allowed to appeal against the judgment has since lapsed(e)The delay occasioned in filing an appeal is not unreasonable and inordinate(f)The delay aforementioned was occasioned by the applicant’s lack of funds to enable him instruct an advocate and filing fees for the Appeal which delay is regretted.(g)The Trial court in its judgment also ordered that a Decree absolute would be issued in Three months from the date of delivery of judgment from April 30, 2021, a period falling on or after July 30, 2021 and unless proceedings of the trial court are stayed , the instant application and intended appeal shall be rendered nugatory(h)The respondent will not be prejudiced in any way if the application is allowed as prayed(i)That this application has been brought promptly and in utmost good faith.

3. The application is supported by the affidavit of the applicant sworn on December 5, 2019 wherein he has reiterated the above grounds.

4. The respondent opposed the application vide a replying affidavit sworn July 30, 2021 where she deposes that the application is a waste of this court’s time for reasons that; judgment having been delivered in Eldoret Chief Magistrate’s Divorce Cause No. 29 of 2020 on April 30, 2021, the proceedings have concluded hence no further proceedings stand to take place and as such the court orders cannot issue in vain

5. The respondent contends further that the applicant has not explained the delay to warrant this court’s exercise of its discretion in granting him leave to appeal out of time and that he has not demonstrated to this court the prejudice he stands to suffer should the stay orders be declined.

6. According to the respondent, the applicant has not met the principles that govern issuance of orders of stay pending appeal as envisaged by Order 42 Rule 6 to wit;a.The prejudice he is likely to suffer should stay be deniedb.His willingness to furnish security for due performance of the decree and/or abide by any conditions as may be made by this court.

7. The applicant filed a further affidavit sworn on August 6, 2021 where he depones that the trial court in its judgment ordered that a decree absolute would issue three months from the date of delivery of judgement (April 30, 2021), a period falling on or after July 30, 2021. According to the applicant, the decree absolute has not been issued. The applicant avers that he stands to suffer great prejudice if the decree absolute is issued before his intended appeal is filed, heard and determined since according to the applicant, the respondent has never been married to him an issue that can only be determined at full hearing of the intended appeal.

8. The applicant averred that the failure to file an appeal in time was due to lack of funds to instruct his advocates to file an appeal on his behalf. As regards the issue of security, the applicant contends that the judgment of the trial court is not a money decree hence the issue of providing security does not apply although he concedes that he is willing to abide with any conditions that will be set by this court.

9. The application was canvassed by way of written submissions. The applicant filed his submissions on 17th November 2021. I have perused the court record and I have not found submissions for the respondent.

DETERMINATION 10. From the application, the only issue for my determination is whether the applicant has met the threshold for grant of the orders of stay of proceedings which orders are discretionary.

11. In the case of Re Global Tours & Travel Ltd HCWC No.43 of 2000 Ringera, J (as he then was) held that:“…As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of case, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously…”

12. The instant application has been brought as a result of divorce proceedings in the trial court. The applicant on one hand is denying being married to the respondent while the respondent on the other hand claims she is married to applicant.

13. The applicant seeks to appeal a decision affirming that he was married to the respondent. In my view, this is an important issue to warrant a decision from the High Court. For that reason, although there appears to have been some delay in filing this application, dictates of justice demand that the applicant be granted the leave to appeal.

14. I therefore allow the application for leave to appeal. I assess the costs herein at Kshs 20,000 and award the same to the respondent to be paid before the said appeal is filed.

DATED, SIGNED AND DELIVERED THIS 9TH OF JUNE 2022. E. K. OGOLAJUDGE