[2017] KEHC 1794 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CIVIL APPEAL NO. 64 OF 2016

(An appeal from the Judgment of the Principal Magistrate, Embu in CM Divorce Cause No. 15 of 2015 dated 24/10/2016)

J N....................................APPELLANT/APPLICANT

V E R S U S

J I N....................................................RESPONDENT

R U L I N G

1. This is a ruling on the application dated 8/05/2017 seeking for orders of stay of execution pending hearing and determination of this appeal.

2. The grounds supporting the application is that the applicant has been served with a proclamation of attachment by Ms. Giant Auctioneers in execution of the lower court judgment. It is also contended that if stay is not granted, the appeal will be rendered nugatory to the serious detriment of the applicant. The applicant says substantial loss is likely to result if the amount ordered is to be paid. It is also argued that the applicant had demonstrated that this appeal has overwhelming chances of success.

3. The application is opposed by the respondent in her replying affidavit on grounds that the appeal was filed out of time and as such it cannot be said that there is an appeal at all. It is also contended that this appeal has no chances of success and this application was only brought when the respondent moved to execute the judgment.

4. The respondent further states that she has never been served with the memorandum of appeal. The applicant did not file defence to the Divorce case and also conceded to it in his application for setting aside interlocutory judgment. The respondent refers to this application as baseless and only meant to delay execution.

5. The applicant in his submissions argues that he has met the threshold set out in Order 42 Rule 6. These are proof that the applicant is likely to suffer substantial loss unless stay is granted; that this application was brought without delay; and that the applicant is ready to provide security for the due performance of the decree.

6. The respondent submits that the appeal having been filed out of time and without leave is no appeal. Since the main prayer of the applicant is for appeal to operate as stay, that prayer cannot be granted due to the flaw in the appeal. The loss likely to be suffered has not been demonstrated as required by the law. It is also argued that the proclamation is not current and that its time has passed.

7. The issues arising from this application are as follows:-

(a) Whether this appeal was filed on time and whether it is competent.

(b) Should the application be found to be competent, the other issue is whether the applicant has satisfied the court as to the requirements of Order 42 Rule 6 of the Civil Procedure Rules for an application for stay of execution.

8. This application is founded on the appeal and is aimed at preserving the appeal so that it is not rendered nugatory. For that reason the application must stand on a competent appeal for its merits to be considered by the court. The issue of the appeal being incompetent was raised by the respondent in the replying affidavit.

9. In support of this allegation, the respondent said that the judgment of the lower court was delivered on 24/03/2016 and this appeal filed over eight (8) months later without leave. The applicant was duty bound to file a further affidavit to deny or admit this allegation which if proved true would jeopardize not only his application but his appeal. He failed to do so. However, the respondent on the face of his application states that the judgment was delivered on 24/03/2016 thus confirming the respondent's allegation.

10. Section 79(G) of the Civil Procedure Act Cap 21 provides that an appeal from the subordinate court ought to be filed within 30 days. With the date of judgment in the application and evidence of the respondent, there is no doubt that the application was filed late and without leave as required by the law. This contravenes Section 79(G) of the Act.

11. The applicant is represented by a counsel who knows that knows the law. He ought to have sought the leave of the court before filing this appeal. The long and unexplained delay in filing coupled with the omission to obtain leave confirms as true the allegation made by the respondent that this application's sole purpose is to delay the execution of the judgment.

12. Curiously, the applicant did not annex the judgment or decree appealed from to the application for the court to know what orders it is being asked to stay and to assess whether the appeal has chances of success. The applicant makes a statement that he has demonstrated that his appeal has high chances of success but attaches no material to support that statement. The is a reflection of an applicant who is not serious in his endeavour to obtain stay of execution.

13. The respondent relies on the case of ANDREW NGANGA NDUNGU VS GODFREY KARURI & ANOTHER [2006] eKLRwhere an application for stay of execution was declined for reasons that the appeal was incompetent. It was held:-

….the court cannot grant any orders sought pursuant to an incompetent appeal and the application of stay must fail.

14. Similarly in the case of EMILY JEPTOO VS HELLEN JENITO Civil Appeal No. 99 of 2012 he court held:-

….an order for stay of execution can only be issued where there is a valid appeal before the court....

15. Based on the foregoing reasons, I find that this appeal is incompetent for having been filed out of time and without the leave of the court. The application for the appeal to operate as stay cannot therefore stand for it is based on an incompetent appeal.

16. I associate myself with the finding of the court in the ANDREW NGANGA NDUNGU case (supra) and with that of EMILY JEPTOO (supra).

17. The application is therefore dismissed with costs. The appeal is also struck out with costs.

18. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF NOVEMBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Mr. Andande for respondent

Ms. Ndorongo for Eddie Njiru for applicant