[2022] KEHC 13826 (KLR)

Hamson v Mwangi (Miscellaneous Application E12 of 2020) [2022] KEHC 13826 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13826 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Application E12 of 2020

TM Matheka, J

October 7, 2022

Between

Nganga Hamson

Applicant

and

Esther Wanjiru Mwangi

Respondent

Ruling

1. Before me is the Notice of Motion dated 22nd October, 2020, brought under Order 42 Rule 6,14 & 26 of the Civil Procedure Rules, Sections 1A,1B,3A & 79 G of the Civil Procedure Act and Article 159(2)(d) of the Constitution seeking Orders:-i.Spentii.That the Applicant be granted leave to appeal out of time.iii.Spentiv.That stay of execution of the Judgement and decree in Naivasha-CMCC No.519 of 2011 (Esther Wanjiru Mwangi –vs-Nganga Hamson) be granted pending the hearing and determination of the intended Appeal.v.That costs of this application be provided for.

2. The Application is premised on grounds on its face and supported by the Affidavit of Nganga Hamson sworn on the even date.

3. He deposed that the judgment in Naivasha - CMCC No.519 of 2011 was delivered in favour of the Respondent against him for a sum of Kshs.2,037,504/= on 3rd of November, 2015 in absence of both parties; that his advocate on record never informed him of the progress of the matter despite several visits to his office and numerous phone calls; that the advocate kept on promising in vain to communicate to him once the matter was concluded; that he knew about the judgement on 2nd October, 2020 when he was served via WhatsApp with warrants of attachment and proclamation from Bemac Auctioneers.

4. He averred that the auctioneers were now harassing him with threats with an un-procedural proclamation and auction his properties.

5. He depones that he intends to appeal against the lower court Judgment; that he has a good appeal with a high chance of success; that has brought this application without unreasonable delay and that he is ready and willing to comply with this Court’s direction on the issue of security for costs.

6. Further unless this Application is allowed, he stands to suffer substantial loss because execution will issue and he will lose his properties thereby rendering the intended appeal nugatory; that this Honorable Court has unlimited discretion and power to grant the orders sought in the interest of Justice.

7. The application is opposed by the Respondent through her Replying Affidavit sworn on 28th January, 2021 on the grounds that throughout the proceedings before the lower court, the Applicant was represented by an advocate who attended court when the matter was in court and was aware of the judgment date as it was issued in his presence; that the delivery of the judgment on 3rd November, 2015 in the absence of both parties did not make the pronouncement of a judgement illegal; that since the year 2015 the Applicant declined to satisfy the decree even after writing to them a reminder vide a letter dated 11th March,2020; that it behooved the applicant to follow up on his case and not to hide behind the lie that his advocate failed to update him on its progress and that in the circumstances the Applicant had exhibited extreme indolence undeserving the equitable orders sought as equity aids the vigilant and not the indolent and that the applicant had failed to demonstrate the substantial loss likely to suffer , and in any event he had not offered the requisite security.

8. She urged the court to dismiss the application with costs.

Applicant’s Written SubmissionS 9. The Applicant filed his submissions on 13th June, 2022 and submitted on two issues: -1. Whether the actions by the respondent to attach and proclaim applicant’s properties are legal2. Whether the applicant is worth the prayers sought in the application.

10. The applicant submitted that the respondent was privy to the existence of a valid insurance policy between him and his insurer in respect of the accident which occurred on 14th April, 2010 and as such it ought to have executed against his insurer pursuant to the provisions of Section 10 (1) of the insurance (Motor Vehicle Third Party Risks) Act Cap 405.

11. And on whether he should be granted leave to appeal out of time, the Applicant submitted that his right of appeal against the verdict of the lower court was guaranteed by the Constitution and this court is clothed with both the Constitutional and Legal Mandate to allow him to Appeal out of time. He cited Edward Kamau &Another; vs Hannah Mukui Gichuki & Another [2015] eKLR where the court opined that :-“….the right of appeal, it has been held time and again, is a Constitutional right which is the cornerstone of the rule of law. To deny a party that right, would in essence be denying them access to justice which is guaranteed under Article 48 of the Constitution and also a denial of a right to a fair hearing guaranteed under Article 50 (1) of the Constitution which latter right cannot be limited under Article 25 of the said Constitution…”

12. He argued that the court was bound to exercise its discretion to admit appeal out of time on demonstration of sufficient grounds pursuant to the Provisions of section 79 G of the Civil Procedure Act and relied on GK Associates Limited & another vs National Bank of Kenya Limited [2017] eKLR.

13. Further that he had properly demonstrated that his failure to file appeal within the requisite time was occasioned by communication breakdown between him and his Advocate.

14. On whether this court should grant stay of execution pending appeal, the Applicant submitted that he had met the prerequisites for grant of stay of execution as stipulated at paragraph 24 in Winfred Nyawira Maina v Peterson Onyiego Gichana [2015] eKLR where the court said:-“24. …some of the major prerequisites to ordering a stay of execution are that:-a.The Applicant has filed an appeal;b.The court is satisfied that substantial loss may result to the Applicant unless the order is made andc.that the application has been made without unreasonable delay; andd.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.”

Respondents Submissions 15. The Respondents filed her submissions on 16th June, 2022.

16. On whether leave to appeal out of time should be granted, the respondent cited the provisions of section 79 G of the Civil Procedure Act and submitted that extension of time to appeal is a matter of judicial discretion and that it is trite law that an applicant seeking enlargement of time to file appeal out of time must show that he has a good cause for doing so. She relied on Dilpack Kenya Limited vs William Muthama Kitonyi [2018] eKLR where the court observed that:-“28. As to the principles to be considered in exercising the discretion whether or not to enlarge time in First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others Nairobi (Milimani) HCCC NO. 2255 of 2000 [2002] 1 EA 65 the Court set out the factors to be considered in deciding whether or not to grant such an application and these are (i). the explanation if any for the delay; (ii). the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice; (iii). Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant.”

17. On the issue of delay in filing the Appeal, the respondent argued that the Applicant could not be heard to blame his advocate as he had not demonstrated the steps he took to correct the situation.

18. Relying on Dilpack Kenya Limited vs William Muthama Kitonyi (supra) where the judge quoted with approval Itute Ngui & Anor vs Isumail Mwakavi Mwendwa Civil Application No. Nai. 166 of 1997, Omolo, JA the respondent argued that not every error on the part of an advocate would be a reason to extend time. In that case it was held that whereas advocate’s bona fide error is a special reason for extension of time within which to appeal, the nature and quality of the mistake must be considered. See also Alibhhai Musajee vs Shariff Mohammed Al-BetCivil Appeal No. 283 of 1998, the Court of Appeal held that whereas the Civil Procedure Act allows for extension of time for filing appeal, if good and sufficient cause shown, failure to act does not constitute a good or sufficient cause. Velji Shahmad vs Shamji Bros. and Popatlal Karman & Co. [1957] EA 438, where the court while addressing the issue of constitutional right to appeal observed that Legislature intended that appeals from judgements should be brought within the prescribed time and no extension of time should be granted except under very special circumstances. & Berber Alibhai Mawji vs. Sultan Hasham Lalji & 2 Others [1990-1994] EA 337, where the court stated that inaction on the part of an advocate as opposed to error of judgement or a slip is not excusable. Therefore pure and simple inaction by counsel or a refusal to act cannot amount to a mistake, which ought not to be visited on the client.

19. It was the respondent’s view that on the totality of the evidence placed before the court by the applicant, he was undeserving of the discretion of this court.

20. The Respondent also submitted that the Applicant had not defended his case before the lower court culminating into the judgment against him hence the intended appeal was not arguable and did not have any chances of success.

21. As to whether the prayer for stay of execution pending appeal is merited, the respondent submitted that the respondent had not complied with the principles for granting stay of execution of decree pending appeal as provided for under order 42 rule6 (1) of the Civil Procedure Rules.

22. The respondent pointed out that execution is a lawful process and respondent was required to demonstrate what substantial loss he would suffer in the event of the execution of the decree. She relied on Joseph Odide Walome vs David Mbadi Akello [2022] eKLR where the court quoted the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR the issue of substantial loss;“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.”

23. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. SeeSilverstein N. Chesoni[2002] 1KLR 867, and Rhoda Mukuma vs John Abuoga [1988] eKLR where the court emphasized the centrality of substantial loss thus:“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

24. On the issue of security, the Respondent submitted that the Applicant had not specified the security he was willing to give.

25. She urged this court to dismiss the instant Application.

Analysis and Determination 26. From the Application, the Affidavits and rival Submissions filed, the issues for determination are:-a.Whether the Application for extension of time to file an Appeal is meritedb.Who should bear the costs

27. The Civil Procedure Rules grants the courts unfettered discretion to enlarge time. Order 50 Rule 6 of the Civil Procedure Rules provides the courts powers to enlarge time where a limited time has been fixed for doing any act or taking proceedings under these rules or by summary notice or by order of the court. Extension of time to file an Appeal out of time is stipulated in Section 79G of the Civil Procedure Act which provides thus;“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 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”

28. In the circumstances of the present case, the Judgment the Applicant intends to Appeal against was delivered on the 3rd November, 2015. This application was filed on 22nd October, 2020. There is no good reason given by the applicant why he never came to court sooner. See Rukenya Buuri vs M’arimi Minyora & 2 Others[2018] eKLR, the court held where a party has not been a diligent litigant or indolent, he cannot blame his advocate, a litigant must be diligent enough to follow up how his case is being handled by his advocate. In view of the foregoing, the Applicant should blame himself for lack of diligence and vigilance. The inordinate delay in filing this application has not been explained and there are no satisfactory grounds for not filing the Appeal in time.

29. The prayer seeking stay of execution pending appeal would therefore not have any legs to stand on.

30. The entire Application lacks merit and the same is dismissed with costs to the Respondent.

DATED, SIGNED AND DELIVERED VIA EMAIL THIS 7TH DAY OF OCTOBER, 2022. MUMBUA T. MATHEKAJUDGEC/A JenniferM/S Kaingati Kamonjo & Co. AdvocatesLaichena Mugambi & Co. Advocates