[2023] KEHC 19714 (KLR)

Eric & another v County Government of Makueni (Miscellaneous Application E091 of 2022) [2023] KEHC 19714 (KLR) (3 July 2023) (Ruling)

Neutral citation: [2023] KEHC 19714 (KLR)

Republic of Kenya

In the High Court at Makueni

Miscellaneous Application E091 of 2022

TM Matheka, J

July 3, 2023

Between

Kenyatta Kamau Muigai Eric

1st Applicant

Antony Kimani Karungo

2nd Applicant

and

County Government of Makueni

Respondent

Ruling

1. What is before me is the application dated August 24, 2022 filed under certificate of urgency under sections 1A, 3A, 63(e), 79G & 95 of the Civil Procedure Act, order 42 rule 6(1), order 50 rule 6 and order 51 rule 1 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. It seeks the following orders;a.Spent.b.That this honorable court be pleased to the defendants/applicants leave to lodge an appeal out of time against the judgment delivered on June 23, 2022 in Makueni CMCC No 37 of 2021. c.That there be a temporary stay of execution of the decree of the decree emanating from the judgment that was delivered on June 23, 2022 in Makueni CMCC No 37 of 2021 pending the hearing and determination of this application inter partes.d.That there be a stay of execution of the decree of the decree emanating from the judgment that was delivered on June 23, 2022 in Makueni CMCC No 37 of 2021 pending the hearing and determination of this application.e.Spent.f.That the costs of this application be in the cause.

2. The application is supported by the grounds on its face and the affidavit of the 1st applicant sworn on the same day. He depones that the said judgment was scheduled for delivery on June 23, 2022 but it was not delivered as the trial court was not sitting. That a notice was posted on Kenya Law notifying parties that the judgment would be delivered via email but it was not delivered. The notice is exhibited as KKME-1. That they found out that the judgment had been delivered when the respondents served them an email containing the party and party costs on July 29, 2022. The email extract is exhibited as KKME-2.

3. That they formally requested for the certified copy of judgment on August 15, 2022 and the same was issued. The letter is exhibited as KKME-3. That the delay in instructing his advocate to lodge an appeal out of time is inadvertent and not intentional. Further, they depose that if stay orders are not granted, the respondent will execute, expose them to substantial loss and render the appeal nugatory. The memorandum of appeal is exhibited as KKME-4. That they are ready to provide security for due performance as may be ordered by court.

4. There is no replying affidavit on record.

5. The application was canvassed through written submissions.

The Applicant’s Submissions 6. Relying on section 59 of the Interpretation and General Provisions Act, they submit that this court has power to extend time. That according to section 79G of the Civil Procedure Act, the court has power to extend time if sufficient reasons are shown. They contend that the reason given is candid and the delay is not inordinate. Further, they submit that no prejudice will be occasioned upon the applicants if the orders sought are granted.

7. Relying on Antoine Ndiaye v African Virtual University; Nairobi HCCC No 422 of 2006, they submit that substantial loss does not represent any mathematical formula but is a qualitative concept which refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal.

8. It is also their submission that the burden of proving capacity and capability to refund the decretal amount is on the respondents in the appeal. They rely on National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another; Civil Appln No 238 of 2005-UR. 144/2005 where the Court of Appeal stated;“While the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has sincethat is a matter which is peculiarly within his knowledge- section 112 of the Evidence Act. Chapter 80 Laws of Kenya.

9. They submit that they are ready and willing to offer security hence have satisfied the requirements for grant of the orders sought.

The Respondent’s Submissions 10. On the question of delay the respondent has relied on Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others (2014) eKLR where the following principles were laid down by the Supreme Court with regard to extension of time;a.Extension of time is not a right of a 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 to case basis.d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court.

11. The respondent submits that there has been an unreasonable and inordinate delay in filing the current application and the applicants have not shown sufficient cause to warrant extension of time. Further, they contend that the appeal has minimal chances of success considering the weight of evidence tendered during trial and the court’s reasons for its decision.

12. As to whether the orders for stay should be granted, the respondent submits that the applicants have not satisfied the conditions in order 42 rule 6(2) of theCivil Procedure Rules.

13. From the application and rival submissions, the only issue for determination is whether the application has merit.

Whether leave to file Appeal out of time should be granted 14. Section 79G of the Civil Procedure Code provides as follows;Time for filing appeals from subordinate courts“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.”

15. The judgment which the applicants intend to appeal from was delivered on June 23, 2022. The applicants deponed that they learnt about delivery of the judgment on July 29, 2022 when they received an email from the respondents. The annexures to the application support this position. A notice was put on the Kenya Law website indicating that civil judgments scheduled for delivery before the learned trail magistrate between 21st and 24th June would be delivered via email. The applicants denied ever receiving such email and it is probable that they did not receive it because the respondent who is a party in the case and would obviously have been a recipient of the email would have rebutted the denial by exhibiting an extract of such email.

16. The period of two weeks before seeking certified copies of typed proceedings and almost a month before filing this application after becoming aware of the judgment on July 29, 2022 has not been explained. However, as pointed out it was not inordinate.

Whether Stay Of Execution Should Be Granted 17. Order 42 rule 6 of the Civil Procedure Rules, provides the conditions to guide the court in determining whether to grant stay pending appeal ; whether the applicant will suffer substantial loss if stay is not granted, whether the application has been filed without unreasonable delay and whether the applicant has furnished security for the due performance of the decree.

18. On delay the applicants explained that the same is inadvertent and unintentional.

19. As for substantial loss, the appellants are apprehensive that if the decretal amount of Kshs 434,753. 00 is released to the respondent, they might not recover the same if the appeal succeeds. The respondent is a County Government and the decretal sum may be an amount that it can easily refund however, it is necessary for the respondent to expressly state that it has set apart some funds for such eventualities. This is especially so because liability has been contested. Further, failure by the respondent to file a replying affidavit may be construed to mean that the application is not opposed.

20. As for security, the applicants deposed that they are ready to abide by the orders which the court will issue.

21. From the foregoing the it is evident that the applicants have sufficiently complied with the requirements of order 42 rule 6 of the CPR 2010.

22. In determination of the application the following orders issue:i.Leave be and is hereby is granted to the defendants/applicants to lodge an appeal out of time against the judgment delivered on June 23, 2022 in Makueni CMCC No 37 of 2021. ii.An order of stay of execution of the decree emanating from the judgment delivered on June 23, 2022 in Makueni CMCC No 37 of 2021 pending the hearing and determination of the appealiii.The applicant to file and serve the record of appeal within 30 days hereofiv.The decretal sum and costs be deposited in a joint interest earning account in the names of both advocates on record within 30 days hereofv.In default of prayer 3 and 4 the stay granted to lapsevi.Mention before the Deputy Registrar within 39 days hereof for compliance.vii.Costs to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 3RDJULY 2023……………………………………………………………….MUMBUA T MATHEKAJUDGECourt Assistant: OchiengApplicants’ Advocates: Mr. MuneneMunene Wambugu & Kiplagat AdvocatesRespondents’ Advocates: Mr. KiruiMbai Waweru Advocates