[2022] KEHC 14818 (KLR)

In re Estate of Muchoki Gathuthi (Deceased) (Succession Cause 767 of 2015) [2022] KEHC 14818 (KLR) (2 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14818 (KLR)

Republic of Kenya

In the High Court at Nyeri

Succession Cause 767 of 2015

JN Njagi, J

November 2, 2022

Between

Charles Gathuthi Muchoki

1st Applicant

Richard Murage Muchoki

2nd Applicant

and

Matheri Isaac Nguru

Respondent

Judgment

1. The application for determination is dated October 15, 2021 and is brought under Section 7 of the Appellate Jurisdiction Act, Section 95 of the Civil Procedure Act and Article 159 (1) of theConstitution seeking for the orders of stay of proceedings in Succession Cause No 767 of 2015 pending the hearing and determination of the instant application and intended appeal. The applicants further seek for extension of time for filing and service of a Notice of Appeal in the intended appeal against the ruling in Succession Cause No 767 of 2015 delivered on March 12, 2020 and that the annexed Notice of Appeal be deemed to have been properly filed within the prescribed time frame.

2. The application was opposed by the respondent vide his replying affidavit dated October 28, 2021.

The Applicants’ Case - 3. It is the applicants’ case that the ruling in the matter at hand was delivered on March 12, 2020 and they could not be reached by their advocate to be notified of the date of delivery of judgment or give instructions on the appeal. The applicants further state that soon thereafter COVID-19 pandemic hit and there was a standstill in the country and thus they were unable to file their appeal in time. The applicants further contend that they were financially constrained to file an appeal. That they were informed of their right of appeal but they could not file the appeal as they had been compounded by their impecuniosity. Thus, the applicants point out that their delay in filing the appeal was occasioned by miscommunication with their advocates at the time, their impecuniosity and the COVID-19 pandemic.

4. The applicants are apprehensive that the respondent may proceed to execute the grant at any time to their detriment as the court revoked their grant and directed that any title touching on Parcel No Mweiga/Block 4 Mwireri/112 was cancelled and the property reverted back to the estate and Parcel No Mweiga/Block 4/Mwireri/112 to be distributed to the respondent.

5. The applicants contend that their appeal has a high chance of success and that unless the orders sought are granted, they stand to suffer loss and damage.

The Respondent’s Case 6. It is the case for the respondent that the application has no merit, is an abuse of the court process and ought to be dismissed with costs. The respondent contends that the matter is already concluded and there are no proceedings to be stayed as only payment of costs is pending. Moreover, there is no appeal filed and the court should not grant any stay orders when there is no appeal filed. The respondent further avers that the applicants have not sought leave to appeal against the decision of the court dated March 12, 2020 and thus no appeal lies.

7. The respondent contends that it has been more than one and a half years since the ruling dated March 12, 2020 and the delay is inordinate and not properly explained. Moreover, the respondent states that the applicants were represented by an advocate by the name of MK Kiminda in the matter and they have not been wanting in legal advice. Further, the respondent states that the instant application has been filed by an advocate who is not properly on record and it is therefore incompetent.

8. The respondent further states that courts have been operating virtually and even physically and thus there is no excuse for not taking action in good time. Further, the respondent avers that the applicants cannot claim that they are poor and they have employed advocates during the pendency of the matter.

9. The respondent avers that there is property in the final decision of the court and the applicants have not paid him the costs of the case amounting to Ksh 174,545/-. As such, the respondent urges the court to order the applicants to deposit the entire sum of Ksh 174,545/- in court or in a joint interest earning account of both advocates.

10. The application was disposed of by way of written submissions.

The Applicants’ Submissions – 11. The applicants reiterate what they deposed in their affidavit and submit that the court should strive to administer justice between the parties when exercising its discretion whether or not to grant orders of stay. The applicants rely on the case of Absalom Dova vs Tarbo Transporters [2013] eKLRin support of that proposition.

12. The applicants submit that they stand to suffer substantial loss if the orders of stay are not granted as the court revoked their grant and directed that any title touching on Parcel No Mweiga/Block 4/Mwireri/112 was cancelled and the property revert back to the estate.

13. The applicants contend that the ruling of the court was delivered on May 12, 2020 and the instant application was filed on October 18, 2021. That delay is dependent on circumstances of each case. They urged the court to find that there has been no unreasonable delay in making the instant application as they brought it as soon as they learnt of their mistake to appeal sooner. The applicants further urge the court to take note that at the time of filing the application, no decree has been extracted and thus the application for stay of further proceedings was made in apprehension that execution may commence at any time. To support their contention, the applicants rely on the case of Savanna International Ltd vs Dennis Wekesa Nyongesa [2011] eKLR.

14. The applicants submit that they have ran out of time to file an appeal. However, they rely on Order 50 Rule 6 of the Civil Procedure Rules, Sections 79G and 95 of the Civil Procedure Act and submit that the court has discretion to admit the appeal out of time or enlarge time as stipulated by the law. The applicants rely on the case of Charles Munyeki Wachira vs Kenya Pipeline Company Limited [2006] eKLR and urge the court to find that the delay was not inordinate and allow the applicants file the appeal out of time.

15. The applicants further rely on the case ofEdward Kamau & Another vs Hannah Mukui Gichuki & Another [2015] eKLR and submit that the right of appeal is a constitutional right and to deny a party that right would be tantamount to denying them justice under Articles 48, 50(1) and 25 of theConstitution. Moreover, Article 159(2) of theConstitution enjoins the court to administer justice without undue regard to procedural technicalities. The applicants contend that they have demonstrated that the appeal is not frivolous and they should not be ousted from the judgment seat due to an excusable delay. They prayed that their application be allowed as prayed.

The Respondent’s Submissions - 16. The respondent has reiterated what he deposed in his affidavit and further submits that an appeal from the ruling dated March 12, 2020 is not as of right and the applicants have to seek leave pursuant to Order 43 Rule 1(2) of the Civil Procedure Rules and Section 75 of the Civil Procedure Act. The respondent relies on the case of Margaret Kanini & 6 Others vs Alice Muthoni Murichi [2015] eKLR and submits that since no such leave has been obtained, the appeal is a non-starter.

17. The respondent submits that the ruling was delivered on March 12, 2020 and the instant application was filed on October 15, 2021 which is 1 year 7 months later and as such, this is inordinate delay by any standards. It was submitted that all that the applicants needed to do was file and serve a Notice of Appeal and apply for proceedings by way of a letter to the court. The respondent submits that that could have been done online/virtually by the advocate on record and upon payment of minimal fees. The respondent further submits that the lack of money and COVID-19 pandemic as alleged by the applicants are excuses. The respondent urges the court to find that the delay is inordinate and not properly explained.

18. The respondent relies on Order 42 Rule 6(2) (b) of the Civil Procedure Rules and the case of Kiraita Abuta vs Richard Nyandika Nyangonya (2019) eKLR and submits that the applicants have not offered any security for the performance of the decree.

19. The respondent relies on the decision in Peter Mwangi Njuguna vs Jane Nyambura Githiga (201)] eKLR and submits that the applicants have not satisfied the requirements of extension of time to file an appeal. Consequently, the respondent prays that the application be dismissed with costs.

Analysis and determination – 20. The respondent raised an issue that the applicants’ advocates are not properly on record. I have perused the court record and noted that the firm of Kabira Kioni & Company Advocates filed a consent under Order 9 Rule 9(b) of the Civil Procedure Rules replacing the firm of MK Kiminda & Company Advocates. In that regard, the firm of Kabira Kioni & Company Advocates are properly on record.

21. The main issue for determination is whether the applicant has met the perquisite for grant of stay of proceedings pending appeal. It is trite law that whether or not to issue an order for stay of proceedings is a matter of the court’s discretion exercised after due consideration of the merits of the case and the likely effect on the ends of justice. The exercise of that discretion should be premised on conscientious and judicious decision based on defined principles which were expounded by J inGlobal Tours & Travels Limited, Nairobi HC Winding Up Cause No 43 of 2000:'As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice, the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is so, on what terms it should be granted. In deciding whether to order a stay, the Court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.'

22. Similarly the threshold for stay of proceedings has been illuminated in the passages in Halsbury’s Law of England, 4thEdition, Vol 37 page 330 and 332 that: -'The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show merely that the plaintiff might not, or probably would not, succeed but that he could not possible succeed on the basis of the pleading and the facts of the case.'

23. In that regard, for an order of stay of proceedings to issue the following points of consideration ought to be adhered to:-a.Whether the applicant has established that he/she has a prima facie arguable case;b.Whether the application was filed expeditiously; andc.Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.Whether the applicants have established that they have a prima facie arguable case -

24. It is trite that an arguable appeal needs only raise a single bona fide point worthy of consideration by the Judge who will hear the appeal and it need not be one that must necessarily succeed - see Cooperative Bank of Kenya Ltd vs Banking Insurance of Finance Union (Kenya) [2015] eKLR.

25. On perusal of the draft Memorandum of Appeal, I am not convinced that the appeal herein raises bona fide points worthy of consideration by the appellate court. As such, I find that the applicants have not raised arguable grounds of appeal.

Whether the application has been made without unreasonable delay - 26. The ruling in the instant matter was delivered on March 12, 2020 and the instant application was filed on October 18, 2021. The application has been brought 1 year and 7 months from the date of the ruling. The reasons for delay as stated by the applicants are the COVID-19 pandemic, the applicants’ impecuniosity and miscommunication between the applicants and their counsel. I find that the reasons as expounded by the applicants are not satisfactory to warrant them the orders of appealing out of time. The COVID-19 pandemic hit in March 2020 bringing everything to a standstill. However, as the year went by the courts began sitting virtually and allowing for court documents to be filed via email. Thus, by the time the applicants were bringing the instant application in October 2021, physical sittings had resumed in courts. Moreover, courts have held that being financially constrained is not reason enough to warrant one to file an appeal out of time. In the case ofGeorge Mwenda Muthuri vs Mama Day Nursery and Primary School Nyeri CA No Nyr No 4 of 2014 (UR2014) the court declined a request for leave to extend time because inability to raise legal fees was not per se a reason. A similar observation was made in the case of Willis Oneko Opiata vs Fredric Omondi Wera [2021] eKLR. Arguably, I find that the delay is unreasonable and inexcusable.Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought -

27. In an application to stay proceedings the court is required to exercise judicial discretion in the interest of justice. This has been demonstrated in the case of Christopher Mutuku & Another vs CFC Stanbic Bank Limited (2015) eKLR where the court observed that:'What matters in an application for stay of proceedings pending appeal is the overall impression the Court makes out of the total sum of the circumstances of each, which should arouse almost a compulsion that the proceedings should be stayed in the interest of justice'

28. It is important to note that this succession cause has been finalised. The only proceedings that may be affected by the orders sought are those related to execution. Upon perusal of the court record, there is a Notice to Show Cause why the applicants should not be committed to civil jail in execution of the decree for failure to pay costs of the case. There is no reason to stop the execution.Whether the applicants ought to be granted leave to appeal out of time –

29. It is trite law that the powers of the court in deciding an application for extension of time to file an appeal are discretionary and unfettered. The law on extension of time is to be found in Section 95 of the Civil Procedure Act which states as follows:Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

30. Section 7 of the Appellate Jurisdiction Act, Cap 9 provides:-The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired.

31. The parameters for the exercise of a court’s discretion have been concisely laid out in the case of Mwangi vs Kenya Airways Ltd (2003) eKLR where the Court of Appeal expressed itself thus: -'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 or not 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.'

32. Applying the above principles to the present case, the delay as discussed above is comprised of 1 year 7 months outside the time for filing an appeal. The reasons given for the delay have not been satisfactorily explained. The interests of justice in the matter tilts in favour of the respondent and he will be greatly prejudiced if the application herein is allowed.

33. For the reasons stated above, I am of the considered view that the applicants have not satisfactorily convinced the court that time should be extended to allow them to lodge an appeal. Consequently, the Notice of Appeal is hereby dismissed.

34. The upshot is that the application for stay of subsequent proceedings and to file an appeal out of time dated October 15, 2021 lacks merit and is dismissed with costs to the respondent.

SIGNED THIS 19TH SEPTEMBER 2022. J. N. NJAGIJUDGEDELIVERED, DATED AND SIGNED AT NYERI THIS 2ND DAY OF NOVEMBER, 2022. By:HON. JUSTICE M. MUYA JUDGEIn the presence of:Muthoni hold brief Miss Kamau for ApplicantsMiss Othaya hold brief for Waweru for RespondentCourt Assistant: Kinyua30 days R/A.