[2022] KEHC 11967 (KLR)

Gathiga & another v Onunga (Miscellaneous Application E387 of 2021) [2022] KEHC 11967 (KLR) (Civ) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11967 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E387 of 2021

JK Sergon, J

July 21, 2022

Between

Anthony Murimi Gathiga

1st Applicant

Peter Njoroge Ndirangu

2nd Applicant

and

Jackstone Omondi Onunga

Respondent

Ruling

1. This ruling is on two applications. The applicants filed a notice of motion dated August 11, 2020 seeking the following orders;-i.Spent.ii.Spent.iii.That the applicants be granted leave to file this appeal out of time against the subject judgement as per their draft memorandum of appeal herein of out of time.iv.That the honorable court be pleased to stay execution of judgement delivered on May 27, 2020 by the Hon S G Gitonga (m/s) Resident Magistrate in Milimani SCCCOMM 10 OF 2021 formerly Milimani CMCC 8570 of 2019 pending the hearing and determination of their intended appeal.v.That the costs of the application be in the cause.vi.Any other and/or further orders that this honorable court deems fit.

2. The application was based on the grounds on the face of it and the supporting affidavit of Mandla K Chege. The applicants stated that judgement in Milimani Small Claims Court Case no 10 of 2021 formerly Milimani CMCC 8570 of 2019 was delivered on May 27, 2021. That they were able to get hold of a copy of the judgement recently after the time within which to lodge an appeal had run out. The respondent has started the process of extracting the decree and may execute at any moment. That this court is seized with the requisite jurisdiction to extend time within which to file an appeal and there is no prejudice that will be occasioned on the respondent that cannot be undone by way of cost. The applicants added that they are ready and willing to comply with such orders as may be imposed by this court.

3. The applicants argued that the respondents did not tender any evidence to demonstrate his financial standing and since his means remain unknown it is likely that the respondent is incapable of refunding the decretal amount. It was the applicant argument that their appeal has high chances of success as the learned magistrate erred in law and in fact in awarding damages that were excessive in the circumstances. The applicants are additionally ready and willing to provide security by a way of a ban guarantee from Diamond Trust Bank Ltd.

4. The second application is dated December 6, 2021 where the applicants sought for the following orders;i.Spentii.Spentiii.Spentiv.That the respondent be ordered to unconditionally release the applicant’s motor vehicle registration number KCC 463M as the said attachment was unprocedural and unlawful.v.That this honorable court be pleased to revert this matter to the position obtaining before December 1, 2021 when the applicants motor vehicle registration number KCC 463M was attached.vi.That this honorable court does issue an order directing the OCS pangani police station to ensure compliance of the orders issued.vii.That this honorable court be pleased to issues any other order that may deem just appropriate and expeditious.viii.That the costs of the application be in the cause.

5. The application was based on the face of it and supported by the affidavit of Caroline Njoroge. The applicant indicated that the court issued directions that status quo be maintained and that the matter be mentioned before the court on February 15,2022 for directions. Upon extraction of the orders issued on November 29, 2021 they noticed that the ruling on the status quo had not been captured. Consequently, the respondents advocate proceeded to instruct regent auctioneers who have since attached the appellant motor vehicle registration number KCC 463m isuzu minibus NQR. In view of this the

6. The respondent opposed the application through a replying affidavit by Jecktome Omondi Onunga. In it the respondent indicated that it is not true that the auctioneers attached KCC 463M as the said car had been already sold to a third party. That the application is therefore an abuse of court process and should be struck out.

7. The respondents submitted that the applicant memorandum of appeal is dated August 11, 2021 and the judgement that was being appealed was delivered by the lower court on May 27, 2021 which is more than three months after the judgement which is inordinate delay. In support they cited Aviation Cargo Support Limited v St Mark Freight Services Limited [2014] eKLR“The order whether or not to grant extension of time or leave to file and serve record of appeal out of time is discretionary. Such discretion is exercised judicially with a view to doing justice. Each case depends on its own merit. 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. In the normal vissiccitudes of life, deadlines will be missed even by those who are knowledgeable and zealous. The courts are not blind to this fact. When this happens, the reason why it occurred should be explained satisfactorily including the steps taken to ensure compliance with the law by coming to court to seek extension of time or leave to file out of time.”

8. Analysis and Determinationa.Section 79G of the Civil Procedure Act is the operative part in answering the question whether the prayer to enlarge time to file the appeal is merited. The section provides as follows: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.

9. Some of the factors that aid Courts in exercising the discretion whether to extend time to file an appeal out of time were suggested by the Court of Appeal in Mwangi v Kenya Airways Ltd[2003] KLR. They include the following:i.The period of delay;ii.The reason for the delay;iii.The arguability of the appeal;iv.The degree of prejudice which could be suffered by the if respondent the extension is granted;v.The importance of compliance with time limits to the particular litigation or issue; andvi.The effect if any on the administration of justice or public interest if any is involved.

10. In this matter judgement was delivered on May 27, 2020 while the application for extension is dated August 11,2020 which is about three months after. The applicant submitted that the delay was caused by a delay in getting hold of a copy of judgement.

11. In considering what constitute inordinate delay, the Court of Appeal in Cecilia Wanja Waweru –V- Jackson Wainaina Muiruri & another [2014] eKLR stated that;“There is no set rule as to what constitutes inordinate delay. Whether or not a party is guilty of inordinate delay depends on the circumstances of the case. We are of the considered view that the learned judge in considering the application, should have looked at the appellant’s conduct from the time the appeal was field up to the date the application for reinstatement was filed……..We have to ask ourselves whether the failure by the appellant to prosecute the appeal in the High Court and/or the delay in filling the application for reinstatement constitute an excusable mistake or was it meant to deliberately delay the cause of justice……. Why didn’t she set the appeal down for hearing for almost 14 years”. The reasonable explanation would be that the appellant had been indolent and had slept on her rights. She was only awakened from her slumber by the dismissal of the appeal.

12. Article 48 of the Constitution guarantees every person access to justice, in addition, under article 50(1) of the Constitution, every person has the right to have any dispute that can be resolved by the application of law decided in affair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. This court therefore finds that a three-month delay is not inordinate to disallow the application and therefore leave is granted to appeal out of time.

13. On the second issue of stay of execution, conditions to be met before stay is granted are provided for under Rule 6(2) of order 42 and states as follows:“No order for stay of execution shall be made under subrule (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; 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.”

14. It is the applicant’s case that they have an arguable case with a high chance of success and unless stay of execution is granted there is a likelihood that the defendant will proceed to execute the decree. They also added that they are ready and willing to furnish security in the form of a bank guarantee. It is this court view therefore that the matter herein is a good candidate for the award of a stay of execution.

15. On the second application it is the duty of the court to ensure that the interests of the parties are balanced and in the case of Machira T/A Machira & Co Advocates V East Africa Standard (No. 2) [2002] KLR 63, the court reiterated on the principle that a successful party is entitled to the fruits of his judgment and in applications for stay, the courts should strive to do justice according to the law and prevent the abuse of the court process. While in the case of Samvir Trustee Limited v Guardian Bank Limited Nairobi(Milimani HCCC 795 of 1997) Warsame J. stated that the court is empowered to carry out a balancing exercise to ensure justice and fairness thrive within the corridors of the court by ensuring that orders of stay are granted conditionally.

16. In light of the above I have considered the applications and make the following orders;i.Appeal shall be filed and served within 14 days from the dates of the ruling herein.ii.There shall be a stay of execution of the judgment delivered on May 27,2020 by the Hon S G Gitonga (m/s) Resident Magistrate in Milimani SCCCOMM 10 OF 2021 formerly Milimani CMCC 8570 of 2019 pending the hearing and determination of their intended appeal.iii.The Warrants of Attachment of motor vehicle registration number KCC 463M are hereby set aside only on condition that the appellant/applicant deposits a bank guarantee with the court within 30 days.iv.In default of prayer 1, 2 and 3 above the stay orders granted shall lapse.v.Cost shall abide the outcome of the intended appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 21ST DAY OF JULY, 2022. ..................................J K SERGONJUDGEIn the presence of:............... for the 1st applicant............... For the 2nd applicant....................... for the respondent