[2022] KEHC 14530 (KLR)

Jeconia v Oyoyo (Civil Appeal E076 of 2022) [2022] KEHC 14530 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14530 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E076 of 2022

RB Ngetich, J

October 19, 2022

Between

Vincent Jeconia

Appellant

and

Zachary Wanga Oyoyo

Respondent

Ruling

1. By a motion dated April 25, 2022, the applicant herein seeks the following orders.a.Spent.b.The court grants leave to the applicant to appeal out of time and that the applicant be allowed to file the attached draft memorandum of appeal.c.That pending the hearing and determination of this application, the warrants of arrest issued on April 19, 2022 be suspended and or lifted.d.That pending the hearing and determination of the appeal, there be a stay of execution on the judgment issued on February 8, 2022 and the subsequent decree issued on the same date.e.That the costs of this application be provided for in the cause.

2. The application is premised on the grounds that the applicant was not given an opportunity to defend the suit in the lower court as the respondent took out a default judgment without service upon the applicant and subsequently took out a decree. A notice to show cause dated March 30, 2022 was issued and the applicant is apprehensive of the imminent threat of arrest.

3. The application is supported by the annexed affidavit of Vincent Jeconia sworn on April 25, 2022. He averred that he was condemned unheard by the trial court as service of the default judgment was not served upon him. The matter was dealt with during the corona period and the court failed to consider the adverse effects of litigation. The applicant instructed the firm of Kelvin Kinyanjui Maina & Co Advocates to come on record and present his interest but the court held counsel had no locus to address the court. The applicant stated he is being denied representation by a counsel.

4. In opposing the application, the respondent filed a replying affidavit sworn on May 9, 2022 and filed on May 10, 2022 in which he deponds the application is opposed as the same consists of falsehood and an abuse of the court process; that the applicant was served summons to enter appearance in the trial court on September 11, 2020 through his mobile number 0720455560 as it was during the covid 19 pandemic period but failed to enter responses to the suit.

5. Further that the loan advancement is not disputed;that the applicant was well aware of the suit as there were attempts to settle out of court after the matter was filed in court. The respondent urged this court to dismiss as the applicant has not attached a copy of the defence and prayed for throw away costs of Kshs 20,000/= if the court allows the application.

6. The court directed parties to canvass the application by way of written submissions, only the respondent's submissions are in the file.

Respondent’s Submissions 7. Counsel for the respondent filed submissions on July 18, 2022. He submitted that the claim arose from a loan agreement entered on January 14, 2017 between the applicant and the respondent in which the applicant defaulted the payment and the respondent filed Thika Civil Suit No 396 of 2020 seeking a refund of the principal sum. The applicant despite being served on September 11, 2020 through WhatsApp, failed to enter an appearance and or file a defence and the applicant requested for judgment to be entered in default of appearance which was issued on February 8, 2022. Notice to show cause was issued on March 30, 2022 and warrants of arrest were issued on April 19, 2022.

8. Counsel submitted that rules 9, 10 and 11 of the Civil Procedure Rules are very clear on setting aside interlocutory orders and argued that the court will not set aside an interlocutory judgment unless it is satisfied the defence filed raises triable issues. He cited the case of the Jomo Kenyatta University of Agriculture and Technology vs Musa Ezekiel Oebal(2014) eKLR where the court stated as follows:-"To avoid injustice or hardship resulting from accident, inadvertence or excusable error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay justice"

9. Further that the applicant was aware of the existence of the suit but failed to enter an appearance thus the applicant failed to prove his case. In conclusion, counsel for the respondent submitted that the application lacks merit and urged the court to dismiss the application.

Analysis and Determination 10. I have considered the grounds in support of the application,averments by parties herein and the submissions filed by the respondents. The issue for determination is whether the court should grant leave to appeal out of time.

11. Under section 79G of the Civil Procedure Act:“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 been 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 a good and sufficient cause for not filing the appeal in time.”

12. Record shows that judgment was delivered on February 8, 2022 while the current application was filed on April 25, 2022. Prior to the filing of this application, the applicant filed an application under certificate of agency seeking to set aside the judgment.The trial court dismissed the application on the basis that counsel was not properly on record and issued warrants of arrest on April 19, 2022.

13. A party aggrieved by judgment is required to file appeal within thirty (30) days from the date of delivery. The applicant was therefore required to file appeal on or before March 8, 2022. At the time of filing application, forty seven (47) days had lapsed.

14. The court in considering whether to grant enlargement of time should consider the period for delay, the reasons for the delay and the prejudice to be suffered as was stated in the case of Edith Gichungu Koine vs Stephen Njagi Thoithi [2014]eKLR as follows:-“Nevertheless, it ought to be guided by consideration of factors stated in much previous decision of this court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to respondent if the application is granted and whether the matter raises issues of public importance, amongst others.”

15. The reason given for the delay is the applicant was not served with the default judgment and only knew of the existence of the judgment at the time of execution and that is when he instructed counsel to file an application to set aside the judgment.

16. In my view, the applicant advanced sufficient reason for the delay and in the circumstances it would be in the interest of justice to enlarge the time within which to file appeal. Allowing filing of appeal out of time will accord the applicant right to access justice as required by article 48 of the Constitution.

17. In respect to prayer for a stay of execution of a decree pending appeal, the applicant ought to satisfy conditions set out in order 42 rule 6 (2) of the Civil Procedure Rules which provides as follows:“(1)No appeal or second appeal shall operate as a stay of execution or proceeding 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 the application being made, to consider such application and to make such order thereon as may 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 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; 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.”

18. The applicant ought to satisfy that he will suffer a substantial loss, the application is made without unreasonable delay and there is security for the performance of the decree.

19. The court has the discretion to issue or refuse to grant a stay of execution. A stay may be granted in order not to render an appeal nugatory in case the appeal court overturns the trial court's discretion.

20. The applicant averred that he was not served with the summons to enter an appearance in the trial court and thus was condemned unheard. The matter proceeded during the Covid -19 pandemic time. As much as the debt has not been denied the applicant contends the appeal has a high chance of success. The applicant is further apprehensive he will be arrested and the respondent will proceed with the execution if a stay of execution is not granted and he will suffer substantial loss.

21. In the case of RWW vs EKW [2019] eKLR, the court stated as follows:-“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”9. Indeed to grant or refuse an application for a stay of execution pending appeal is discretionary. The court when granting the stay, however, must balance the interests of the appellant with those of the respondent.”

19. The applicant contend the appeal has a high chance and at this interlocutory stage the court will not ventilate on the merits of the appeal. I therefore cannot say that the appeal as intended is frivolous.

20. I find that the applicant has demonstrated that if a stay is not granted he will suffer irreparable loss as the respondent will proceed with the execution of the decree. I will therefore allow stay of execution with condition for deposit of half the decretal amount .

Final Orders;1. Apllication is hereby allowed to file appeal out of time.2. Memorandum of appeal filed on April 25, 2022 is deemed as duly filed upon payment of requisite fee.3. Stay of execution is issued on condition that half the decretal amount is deposited in court within thirty (30) days from the date of this ruling.4. Costs of this application to abide by the outcome of the appeal.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBUTHIS 19TH DAY OF OCTOBER, 2022RACHEL NGETICHJUDGEIn the Presence of:Kinyua/Martin – Court Assistant