[2022] KEHC 486 (KLR)

In re Estate of Kimunye Maina (Deceased) (Miscellaneous Succession Cause E001 of 2020) [2022] KEHC 486 (KLR) (4 May 2022) (Ruling)

Neutral citation: [2022] KEHC 486 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Miscellaneous Succession Cause E001 of 2020

RM Mwongo, J

May 4, 2022

IN THE MATTER OF THE ESTATE OF KIMUNYE MAINA (DECEASED)

Between

Muthoni Kimunye

Applicant

and

Daniel Muriuki Kimunye

Respondent

Ruling

1. The applicant’s motion dated 19th October, 2020 is made pursuant to section 59 of the Interpretation and General Provisions Act, section 1A, 3A and 79G of the Civil Procedure Act, section 47 of the Law of Succession Act. It seeks the following orders:1)Spent2)Spent3)Stay of execution pending hearing and determination of the application4)That the defendant be granted leave to lodge an appeal against the judgement that was delivered on 30th April, 2020 out of time.5)That costs of this application be in the cause.

2. The application is premised on the following grounds:1. That judgment was delivered in this matter on 30th April, 2020 and the applicant is desirous of appealing against the said judgment.2. That the applicant was not informed of the delivery of the judgment as the same was delivered electronically.3. That the court premises were not accessible due to the Covid 19 pandemic.4. That this court has power and jurisdiction to enlarge time and the Applicants pray that the said power be exercised in their favour.

3. In addition to the grounds, the applicant has deposed a supporting affidavit, of which the following are the major averments: -1. That the Honourable Court gave a Judgment in the matter on 30th April, 2020. 2.That due to Corona virus, there was closure of the Courts and thus she could enquire on whether the judgement had been delivered.3. That the applicant is not satisfied with the judgment as the Court distributed the estate of the as per houses, a mode that had not been proposed by either party.4. That she has an arguable appeal.5. That the application has been brought without inordinate delay.6. That the applicant prays for the Honourable Court to exercise its discretion and grant her leave to file appeal out of time and stay execution of the grant.7. That the respondent will not suffer any prejudice if the application is allowed.

4. The respondent filed a replying affidavit opposing the application. The major averments therein are as follows:1. That that the Application before Court is incompetent, bad in law and an abuse of the Court process.2. That the delay of 6 months is inordinate, unreasonable and inexcusable.3. That the Court was accessible by the time the Judgement was made and I invite the Court to take Judicial notice that parties were filing pleadings, only that Court operations been scaled down and that by 3rd June. 2020. Court operations were scaled up.4. That the intended appeal has not chance of success.5. That the appellant has not demonstrated the substantial loss she would suffer since she is also a beneficiary in the Judgement.6. That the applicant has not offered Security.

5. The parties filed written submissions as directed by the court.

Parties’ submissions 6. The parties’ submissions were an elaboration of their affidavits and grounds.

7. The applicant submitted that the judgment she seeks to appeal was delivered electronically; that she did not consent to electronic delivery; and that she was never supplied with a copy of the judgment nor informed of the delivery as the court operations had been scaled down due to Covid-19.

8. The applicant further submitted that the appeal has high chances of success and annexed a Memorandum of appeal to demonstrate that she has an arguable appeal. She stated that she will suffer prejudice if the application is not allowed. The Applicant deponed that as a result of the judgement and issuance of the Grant, the respondent may proceed to register the same and that will render her appeal nugatory.

9. The applicant cited case of Stanley Kaiyongi Mwenda v Cyprian Kubai[2000] eKLR in which the learned Judges quoting the case of Leo Sila Mutiso v Rose Hellen Wangari Mwangi stating that the decision on whether to extend time to appeal out of time is discretionary.

10. The respondent submitted that the applicant’s application was unreasonably and inordinately delayed in its filing. That the application for stay of execution and leave to appeal out of time on 21st October, 2020 while the judgement had been delivered on 30th April, 2020is a sic month delay without explanation; that this is against section 79 G of the Civil Procedure Act which provide that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for the filing the appeal out of time.

11. The respondents rely on the decision in: Kenya Shell Ltd v Benjamin Karuga Kibiru & another Civil App 97 of 1986 and, more particularly on Selestica Limited v Gold Rock Development Civil Appeal No 48 of 2015 where Aburili J referred toJaber Mohsen AK & another v Priscillah Boit & another E&L NO 200 of 2012(2014] ELCR that unreasonable delay depends on the circumstances of the case. The court stated that: “The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay' is dependent on the surrounding circumstances of each case. Even one day after judgement could be unreasonable delay depending on the judgement and any orders given.

12. On whether the applicant has satisfied the conditions for stay of execution. The respondents submit that the applicant filed the application for stay of execution and leave to appeal out of time on 21st October,2020 while the judgement had been delivered on 30th April,2020.

13. The respondent in his replying affidavit did not state any prejudice he will suffer if the applicant is granted leave to file an appeal out of time. Section 59 of the Interpretation and General Provisions Act has granted this court power to extend time for doing any act.

Issues 14. The issues for determination are:1. Whether the applicant should be granted leave to file appeal out of time.2. Whether stay pending hearing and determination of the appeal should be granted.

Analysis and Determination Leave to file appeal out of time 15. Section 79G of the Civil Procedure Act provides that appeals must be filed within a period of 30 days from the date of the decree or order from which the appeal lies. Order 42 Rule 6 has set out the conditions that a party must satisfy before an order for stay pending appeal is granted. The conditions are that:There must be proof that substantial loss may result to the applicant unless the order is made; that the application has been made without unreasonable delay; that an applicant must provide such security as the court orders for the due performance of the decree.

16. It is not disputed that the lower court judgment was rendered in the absence of the applicant; nor is it disputed that the Applicant was not informed of the delivery of the judgment and that the same was delivered electronically; it is also not disputed that at the time when judgment was rendered, there were covid protocols in place that caused interruption to the normal flow of court matters.

17. I note that the respondent’s case is essentially that the applicant filed the application for stay of execution and leave to appeal out of time on 21st October, 2020 while the judgement had been delivered on 30th April, 2020; and that this is against section 79 G of the Civil Procedure Act which provides that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for the filing the appeal out of time.

18. The decision to extend time to appeal out of time is discretionary. In exercise of that discretion, the court is supposed to take into account the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted and the degree of prejudice to the respondent if the application is granted.

19. I have noted that in Stanley Kaiyongi case, the court quoting the case of Leo Sila Mutiso v Rose Hellen Wangari Mwangi stated as follows:“it is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are first the length of the delay secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted and fourthly, the degree of prejudice to the respondent if the application is granted”.

20. The applicant has stated that she was unrepresented and I can appreciate that in such circumstances it would be difficult for her to follow up court matters when the covid pandemic disturbance occurred. Clearly, that the 30 day statutory period to lodge an appeal fell well within the Covid 19 pandemic situation. As such I do not consider that the delay in filing the intended appeal was inordinate.

21. As to whether the intended appeal has chances of success, that is not for this court to decide at this stage. I would only point out that from the draft intended memorandum of appeal annexed, the court is satisfied that the intended appeal is not, on its face, frivolous.

Stay pending hearing and determination of the appeal 22. The Applicant deponed that as a result of the judgement and issuance of the Grant, the Respondent may proceed to register the same and that will render her appeal nugatory. The subject matter of the judgment was a confirmed grant. Such grant under the Law of Succession Act gives the grantee the power and authority to effect final transactions of the deceased’s property including transfer, sub-division and sale. It entitles the grantee to exercise consequential and extremely substantial powers.

23. Order 42 Rule 6(2) of the Civil Procedure Rulesprovides that:“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.

24. That Order grants this court wide discretion to stay execution of decrees pending appeal. This was held by the Court of Appeal in Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR where Hancox JA in his ruling observed:“As I said I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given. Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause.”

25. In my view, the Court, when dealing with succession matters, must be careful to ensure that as far as possible, succession rights are not snuffed out by technicalities as to time and so forth. Here the respondent has not indicated how he would compensate the applicant if the appeal were to be successful. This is therefore a situation in which I think the stay of execution should continue in force.

26. For all these reasons, the application is allowed: extension of time to file the appeal is granted and the applicant shall file the appeal within thirty (30)days from the date hereof; and the hearing thereof shall be expedited.

27. Similarly stay of execution is hereby granted pending the determination of the appeal.

28. Orders accordingly.

DELIVERED AT KERUGOYA ON THIS 04 DAY OF MAY 2022. .......................R MWONGOJUDGEDelivered in the presence of:1. Maina Mwangi for the Applicant2. Otuke holding brief for Magee for the Respondent3. Murage Court Assistant