[2022] KEHC 9981 (KLR)

Greyhound Company Ltd v Globetrotter Agency Limited (Civil Appeal E024 of 2022) [2022] KEHC 9981 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9981 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal E024 of 2022

JN Mulwa, J

July 7, 2022

Between

Greyhound Company Ltd

Applicant

and

Globetrotter Agency Limited

Respondent

Ruling

1. In Nairobi Small Claims Court Case No. E012 of 2021, the Appellant Greyhound Company Limited was the Plaintiff, while the Respondent Globetrotter Agency Limited was the Defendant. Judgment therein was delivered on the 2/12/2021. The Appellant being dissatisfied with the Judgment lodged this appeal, vide a Memorandum of Appeal dated 20/1/2022, and filed on the 22/1/2022.

2. By an application dated 25/3/2022 and filed on even date, the Applicant/Appellant sought orders of stay of execution of the Judgment and decree of the small claims court pending hearing and determination of this application and the appeal, on grounds that the appeal has high chances of success, and if stay orders are not granted, execution shall occasion substantial loss to the applicant should the appeal be successful. Geoffrey Thuo, a director of the Applicant company swore the Supporting Affidavit on the 25/3/2022.

3. The Applicant states that in support of the application, it is willing to furnish security for the due performance of the decree in form of a bank guarantee.

4. In opposing the application, the Respondent filed a Replying Affidavit sworn on the 22/4/2022 by one Vidya Jethwa, though his status in the company is not stated. It is deponed that the Appeal was filed out of time by three weeks contrary to provisions of Section 79G of the Civil Procedure Act, and further that the appeal as filed raises matters of fact, not of law only, and therefore rendering the application baseless. The Respondent thus has urged for the dismissal of the application

5. Parties argued the application before me on the 12/5/2022. I have carefully considered the application, the affidavits in support and in opposition, and the oral arguments.

6. The issues that arise for determination, in my view are two:i.Whether the appeal was filed within time.ii.Whether an order of stay of execution of the small claims court Judgment should to be granted.

7. The Small Claims Court Act No. 2 of 2016, Section 38(1) provides that:1)A person aggrieved by the decision or an order of the court may appeal against the decision or order to the High Court on matters of law.2)An appeal from any decision or order referred to in Subsection (1) shall be final.

8. Section 79G of the Civil Procedure Act, Cap 21 Laws of Kenya provides for time for filing appeals from subordinate courts as 30 days excluding such period which the lower court may certify as having been necessary for the preparation and delivery to the appellant 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 out of time.

9. The Small Claims Court is a Subordinate Court and thus bound by the Rules applicable to filing of appeals to the High Court. The Judgment appealed from was delivered on the 2/12/2021. Thirty (30) days period would have lapsed on the 2/1/2022. However, the Memorandum of Appeal was not filed until the 22/1/2022.

10. Order 50 (4) of the Civil Procedure Rules, 2010 provides for the period when time does not run, this being the period between twenty first of December of any year and the thirteenth day of January in the next following year, both days included. Such period is to be excluded from any computation of time whether under the Civil Procedure Rules or any order of the court for doing any act, including for amending, delivering or filing of any pleading.

11. Clearly, filing of an appeal is such one act where computation of time does not run during the stated period. Thus, and without a doubt, the appeal hereof cannot be said to have been filed out of time. In such circumstances, no leave of court is required to file the appeal, so long as the period, upon computation, amounts to thirty days after delivery of the impugned judgment.

12. The result is therefore that the appeal herein, by the Memorandum of Appeal dated 20/1/2022 and filed on the 22/1/2022 is deemed to have been filed within time. To that extent then, issue number one (i) is thus answered in the affirmative.

13. On issue number 2, whether a stay of execution of the decree should be granted pending hearing and determination of the Appeal. On the onstart, it is noted that the Applicant has not annexed to the application a copy of the judgment or decree. The court is left in darkness as to what it would be staying. I have carefully interrogated the Supporting Affidavit. Other than stating that a Judgment was delivered, no mention as to the content of the Judgment. It is not the duty of the Court to prompt or direct a party to provide details of its claim.

14. Further, stating that the appeal has high chances of success without elaboration is not enough. The terms of the judgment have not been stated. No decree has been attached for the court to consider; only stating that if executed, the appeal would be rendered nugatory.

15. Nevertheless, it is trite that a party ought not be locked out of the seat of justice by mere technicalities as stated under Article 159(2)(d) of the Constitution.

16. Likewise, the Respondent was not of any help to the Court as it too failed to show clearly the content of the impugned Judgment while asserting that the appeal is in respect of matters of law and facts which is against the clear provisions of the Small Claims Court Act, Section 38(1) & (2) cited above, that only matters of law may be appealed from, to the High Court.

17. This is not to say that the court is shifting the burden of proof in the application to the Respondent – see Equity Bank Limited v Richard Ayiera [2020] eKLR and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others.

18. On the matter of Stay of Execution Pending Appeal, the principles guiding the grant of a stay are well settled, and provided under Order 42 Rule 6(2) of the Civil Procedure Rules, which provide as follows:Subrule (1) unless –(a)The court is satisfied that substantial loss may result to the applicant unless the order is made that the application has been made without unreasonable delay; and(b)Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him been given by the applicant

19. A further condition is that stay may be granted for sufficient cause, and in deciding whether or not to grant the stay, the court ought to consider the overriding objectives stipulated under Sections 1A and 1B of the Civil Procedure Act – being the just determination of proceedings, and efficient disposal of the business of the court, by use of the available judicial and administrative resources and timely disposal of all other proceedings in the court, by use of the available judicial and administrative resources and timely disposal of all other proceedings in the court at a cost affordable by the respective parties – see Nicholas Mututu Mwasuna v Patricia Mueni Kilonzo [2022] eKLR.

20. While exercising its discretion, the court will always opt for the lower, rather than the higher risk of injustice – Suleiman v Amboseli Resort Limited [2014] eKLR, where it was held;“The possibility that substantial loss will occur if an order of stay of execution is not granted is the cornerstone of the jurisdiction of court in granting stay of execution pending appeal under Order 20 Rule 6 Civil Procedure Rules.”

21. The above is a balancing act between the rights of the Respondent to the fruits of its judgment and the Appellants prospects of his appeal; that it should not be rendered nugatory by a denial of a stay order.

22. The Court of Appeal in Samrir Trustee Limited v Guardian Bank Limited; Civil Appeal 235 of 1999; [2000] KECA 356 (KLR) Nairobi Milimani HCCC No. 795 of 1997, rendered that:“every aggrieved party has a natural and undoubted right to seek the intervention of the court of Appeal and the Court should not put unnecessary hindrance to the enjoyment and exercise of that right by the defendant … but the yardstick is for the court to balance or weigh the scales of justice by ensuring that an appeal is not rendered nugatory while eat the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgment; hence the consequence factor to bear in mind is that it has defined the rights of a party with definite conclusion.”

23. For the Applicants, it is not enough to state that it will suffer substantial loss. It must satisfy the court of the substantial loss, by documentary or empirical evidence to support the assertion, so as to have, and fight on a level ground and equal footing, in an attempt to safeguard the rights and interests of both sides.In the case above, the Court of Appeal went further to state that the applicant must show the damages it would suffer if the order of stay is denied.

24. In the Tropical Commodities Supplies Ltd & others v International Credit Bank Limited (in Liquidation) [2004] EALR 331, the Court of Appeal rendered that;“…substantial loss does not represent any particular mathematical formula, rather, it is a quantitative concept. It refers to any loss, great or small, that is of real worth or value and as distinguished from a loss without value or loss that is merely nominal…”

25. An order of stay of execution is at the court’s discretion. It ought not cause undue suffering to either of the parties, rather, it recognizes that both parties have rights that ought to be safeguarded, guided by the overriding principle under Section 1A and 1B of the Civil Procedure Act; that anchors substantive justice as a principle of justice as stated under the Constitution, Article 159(2)(d).In the case at hand, the applicant has not stated at all what substantial loss it would suffer if the order of stay is denied. It has not stated that the Respondent would be unable to repay the decretal sum if the appeal is successful at the end; only stating that it would be at a disadvantage as execution proceedings can be initiated any time (paragraph 5 – Supporting Affidavit).

26. That being the case, and being guided by the above cited decisions, I find that the applicant has fallen short of proving that it will sustain substantial loss if an order of stay of execution is denied.I have observed and stated that the terms of the judgment and decree have not been stated. The court cannot act in a vacuum while granting orders, in this case, stay of execution of an unclear and ascertainable judgment from the scanty information provided by the applicant. The reason stated that the respondent may initiate execution proceedings is not elaborated, nor enough.

27. For the above reasons, the court finds that the applicant has not satisfied the court of any loss or substantial loss it may suffer by a denial of the order for stay of execution pending hearing and determination of the appeal.Consequently, the Applicant’s application dated 25/3/2022 is dismissed, as far as the orders sought for stay of execution are concerned.In order to hasten the appeal process, I make an order that the Applicant/Appellant file the Record of Appeal within 60 days of this ruling.Orders accordingly.

DELIVERED DATED AND SIGNED AT NAIROBI THIS 7TH DAY OF JULY 2022. J. MULWAJUDGE.