[2023] KEHC 24999 (KLR)

Hemed v Kenya Orient Insurance Company Limited (Civil Appeal E009 of 2023) [2023] KEHC 24999 (KLR) (6 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24999 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E009 of 2023

DKN Magare, J

November 6, 2023

Between

Farida Hemed

Appellant

and

Kenya Orient Insurance Company Limited

Respondent

Judgment

1. This is an appeal from the Ruling and Order of Hon. Mr. J. B. Kalo (CM) delivered on the 26th day of January, 2023 at Mombasa in Msa MCCC. No. 2868 of 2010 Farida Hemed vs Kenya Orient Insurance Company Limited.

2. The appeal is against exercise of discretion to extend time to comply with orders given on 10/11/2022.

3. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

4. In the cases of Peters vs Sunday Post Limited [1985] EA 424 where in the latter case, the court therein rendered itself as follows:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

5. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."

6. The issues raised are issues of law. In dealing with issues of law, the court deals with the Appeal on points on las. In Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLRThis is a second appeal. I am alive to my duty as a second appellate court to determine matters of law only unless it is shown that the courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. (See: Stanley N. Muriithi & Another versus Bernard Munene Ithiga (2016) eKLR).

7. The Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 as follows: -“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.

8. The aspect of discretion was settled in Mbogo & Another vs. Shah [1968] E.A. 93 at page 96, where the legendary Sir Charles Newbold P elucidated the point in the most poignant way as hereunder: -“…a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been injustice….’’

The Appellant’s Submission 9. The Appellant submitted that the court ought to allow the Appeal herein. They stated that the court needs to determine whether the learned magistrate erred in law and in fact in allowing the Respondent’s Notice of Motion dated 23rd January, 2023 and/or granting the Respondent 14 more days to comply with the terms of the ruling and order of 10th November, 2022.

10. The appellant was of the view that he decision was not exercised upon reason, was capricious or lacks reasons thereof. This is because it amounted to assisting an indolent person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice. They concluded that the court failed to take account of considerations of which it should have taken account.

11. This was in respect of granting of orders of stay. They raised the following grounds: -a.That the learned magistrate erred in law and in fact in allowing the Respondent’s Notice of Motion dated 23rd January, 2023. b.That the learned magistrate erred in law and in fact in granting the Respondent 14 more days to comply with the terms of the ruling and order of 10th November, 2022. c.That the learned magistrate erred in law and in fact in disregarding or misapplying the principles of enlargement and/or extension of time.d.That the learned magistrate erred in law and in fact in ignoring the reply and submissions of the appellant to the said application

12. They submitted that e duty of an appellate court in deciding whether to interfere with a discretionary power was discussed by Justice B. O. Manani in Stephen Mwallyo Mbondo v County Government of Kilifi [2021] eKLR, thus:“20. The general principles on when an appellate court may interfere with a discretionary power of a trial are now well settled. In the case of Mbogo & Another vs Shah, [1968] EA, these principles were set out as follows: -“An appellate court will not interfere with the exercise of the trial court’s discretion unless it is satisfied that the court in exercising its discretion misdirected itself in some matters and as a result arrived at a decision that was erroneous, or unless it is manifest from the case as a whole that the court has been clearly wrong in the exercise of judicial discretion and that as a result there has been misjustice.”“The discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought whether by evasion or otherwise, to obstruct or delay the course of justice.”

13. They relied on the authority of Patel v E.A. Cargo Handling Services Limited (1974) E.A. 75, where the court of Appeal for eastern Africa held as follows:“There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose condition on itself or fetter wide discretion given to it by the rules: the principle obviously is that unless and until the count has pronounced judgment upon merits or by consent, it is to have power to revoke the expression of its coercive power where that has obtained only by a failure to follow any rule of procedure.”

14. The Appellant wax aggrieved and relied on the decision of Shanzu Investments Ltd v Commissioner of Lands [1993] eKLR, where court observed as follows on the discretion to set aside ex-parte judicial decisions:-“The jurisdiction to vary judgment being a judicial discretion should be exercised judicially; and, as is often said, whether judicial discretion should be exercised or withheld in a party’s favour, depends, on a large measure, on the facts of each particular case. The tests for the exercise of this discretion are these: - First, was there a defense on the merits? Secondly, would there be any prejudice? Thirdly, what was the explanation for any delay?’’

15. To the appellant a grave injustice was committed. He sought refuge in the decision of Lady Justice Ndolo in Kridha Limited v Peter Salai Kituri [2020] eKLR, discussed this duty thus: -“23. I am reminded of the following rendition by Madan JA (as he then was) in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] E.A:“The Court of Appeal will not interfere with a discretionary decision of the Judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the Judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the Judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.”

16. They lament that the decision was not accounted for. There was no burden of proof on the exercise of judicial discretion bears the burden of accounting for their decision and in order to discharge this burden. The court failed to explain the basis of its decision. They rely on the decision in Southern Star Sacco Limited v Vanancio Ntwiga [2021] eKLR.

17. They relied on the case of Kenya Women Microfinance Ltd v Martha Wangari Kamau [2021] eKLR, a matter I handled personally when I was in the bar, I must confess. The court held as doth: -“57. In Kenya Tourist Development Corporation v Sundowner Lodge Limited (supra), it was emphasized that an appellate court should pay some deference to decisions made in exercise of discretion but should not follow them slavishly. Where there is a basis for upsetting such decisions, the court should do so if the findings in question are based on no evidence, or a misapprehension of the evidence; consideration of irrelevant matters or failure to consider what ought to have been considered. The court will interfere if it is shown demonstrably that the court acted on wrong principles in reaching a particular finding of fact or conclusion of law or if the decision is generally perverse and unsupportable.”

18. The request this court to allow the appeal. They crown all these beautifully written submissions by relying on the decision by Justice Odunga J, as he was then in Teacher Service Commission v Ex-parte Patrick M Njuguna [2013] eKLR where e posited as doth: -“In John Ongeri Mariaria & 2 Others vs. Paul Matundura Civil Application No. Nai. 301 of 2003 [2004] 2 EA 163 it was held that: “...Whereas it is true that the Court has unfettered discretion, like all judicial discretion must be exercised upon reason not capriciously or sympathy alone...Justice must look both ways as the rules of procedure are meant to regulate administration of justice and they are not meant to assist the indolent”.

Respondent’s submissions 19. They rely on the case of Patriotic Guards Ltd v James Kipchirchir Sambu [2018] eKLR, where the Court of Appeal, Waki, Warsame & Makhandia, JJ.A) stated as doth: -“The sole issue for consideration in this appeal is whether or not the trial Judge judiciously exercised his discretion in refusing to set aside the ex parte judgment. It is settled law that whenever a court is called upon to exercise its discretion, it must do so judiciously and not on caprice, whim, likes or dislikes. Judicious because the discretion to be exercised is judicial power derived from the law and as opposed to a judge’s private affection or will. Being so, it must be exercised upon certain legal principles and according to the circumstances of each case and the paramount need by court to do real and substantial justice to the parties in a suit. Chief Justice, John Marshall, the 4th Chief Justice of the United States, delivered himself in Osborn V. Bank of the United States, 22 U. S. 738 [1824] on the issue as follows;“Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.”

20. They rely on Kenya Power and Lighting Company Limited v IO (minor suing through next friend and father GIO [2020] eKLR, where Justice J. Kamau, stated as doth: -“Notably, courts ought to grant only what has been sought by the parties and not imagine, presume or assume that a party would want a particular order granted. In our jurisdiction, litigation is adversarial in nature. Courts must therefore not descend into the arena of disputes because in granting an order for stay of execution pending applicant herein, this court would in fact be prosecuting the case on behalf of an applicant to the detriment of a respondent.”

21. They relied on several other decisions on the issue of dismissal for want of prosecution. They urged me to dismiss the appeal.

Analysis 22. Though the directions were given on 25/9/2023 on filing of submissions, the Appellant had filed his on 13/7/2023 and they are on the portal. The aspect of being unable to reply does not arise.

23. This is a strange appeal. It must be dismissed for three cardinal reasons.

24. First it is an appeal against exercise of discretion. It is not enough that this court could have issued different orders. Secondly, it is an appeal from grant or refusal of an application for stay. This does not form an independent appeal the court should be able to deal with it in the court appealed to. In this case in 124 of 2022. Thirdly, it lacks merit.

25. Under order 42 rule 6, a party may make a fresh application in the court appealed to despite orders being given. This means a successful party can still move the high court for stay. Order 42 rule 6 provides as follows: -“Stay in case of appeal(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under Sub rule (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; and(b)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.(3)Notwithstanding anything contained in Sub rule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.(4)For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.(5)An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.(6)Notwithstanding anything contained in Sub rule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”

26. Therefore, under order 42 Rule 6(1) the only recourse available is to apply to set aside the order grant stay in the court appealed to. This is not though a fresh appeal but through and application in the appellate court, that is in the appeal which caused stay pending appeal. This is not a matter of procedural technicality but an issue of substance.

27. In Butt versus Rent Restriction Tribunal 1979 eKLR (Madan, Miller and Porter JJA) the court stated as follows when considering an application for stay of execution: -“i.The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.ii.The general principal in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.iii.A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion a better remedy may become available to the applicant at the end of the proceedings.iv.The court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirement.

28. An applicant for stay of execution pending appeal is required to firstly; demonstrate that he will suffer substantial loss unless the stay is granted; that the application has been filed without unreasonable delay and that he is willing to offer security for due performance of the decree. These are discretionally orders. Then in extending time to do anything is equally discretionally. It is not an appealable order.

29. Consequently, I do not need to address the rest of the issues in the Appeal. It is an empty appeal that should never have been. in the circumstances, I dismiss the entire appeal in limine with costs of 45,000/= to the Respondent payable within 30 days in default execution do issue.

Determination. 30. The upshot of the foregoing is that I make the following orders: -a.The Appeal is dismissed in limine with costs of Ksh 45,000/=.b.Costs be paid within 30 days, or deducted from any decretal sum if the Appeal in no 124 of 2022 is unsuccessful.c.In default, execution do issued.This file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 6TH DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:No appearance for partiesCourt Assistant - Brian