[2021] KEHC 6229 (KLR)

REPUBLIC OF KENYA

IN THE HIGH OF KENYA

AT MERU

MISC CIVIL APPL. NO.E004 OF 2021

JEREMIAH KOBIA JOSHUA.....................................................................APPLICANT

VERSUS

CECILIA KAEMBE MWIRICHIA.........................................................RESPONDENT

RULING

1. The court is called upon to determine a Notice of Motion under certificate of urgency dated 11th November 2020 by the applicant, Jeremiah Kobia Joshua, brought under Order10 Rule 11, Order 42 Rules 6 & 7, Order 45 Rule 1 and Order 51 of the civil procedure Rules, Section 3A & 3B of the Civil Procedure Act and Article 159 of the Constitution. In it the applicant seeks a plethora of reliefs being that:

i. The honourable court be and is hereby pleased to enlarge time and grant leave to the applicant to file the intended appeal out of time

ii. This honourable court be and is hereby pleased to issue an interim order of stay of execution of the judgement and/or decree and/or certificate of costs issued by the court on 5/03/2019 and any other orders issued pursuant thereto pending the hearing and determination of the intended appeal

iii. This honourable court be and is hereby pleased to adopt the declaratory judgement in Tigania PMCC No.60 of 2019 delivered on 18/12/2019.

iv. This honourable court be and is hereby pleased to order the release of the subject motor-vehicle on condition that the applicant shall ensure execution of the decrees in PMCC No.60 of 2019 and PMCC No.27 of 2018 within two months from the date hereof.

v. This honourable court be and is hereby pleased to direct the respondent and/or their employees and/or their agents to release the subject motor-vehicle in their possession being M/V Reg. No. KBQ 716 K to its owner and/or the applicant herein.

vi. This honourable court be and is hereby pleased to deem the intended appeal attached herein as duly filed and properly on record upon payment of the duly assessed court filing fees.

vii. This honourable court be and is hereby pleased to direct the OCS-Meru Police Station to assist the applicant herein to enforce the orders herein.

viii. That costs be in the cause.

2. The grounds upon which the application is premised are set out in the body of the application and supporting affidavit of the 1st applicant sworn on 11/11/2020 in which it is contended in that the applicants have sought the pro bono services of their current advocate as a result of the oppressive, unfair and biased judgement and decree issued by the trial court in Tigania PMCC No.29 of 2018 dated 5/03/2019, which aggrieved them and for which reason they intend to appeal. It is averred that the applicant’s intended appeal is based on pure points of law with overwhelming chances of success on the grounds that they were never served with the pleadings and summons to enter appearance in the trial suit and was therefore not a party thereof. The trial court is faulted for allowing the matter to proceed without ascertaining whether the applicant was duly served. After the judgment, it is alleged that the respondent further attached the applicant’s motor vehicle without following due process and procedure in that no notice to show cause why the said motor vehicle ought not to be attached was ever served. It is further contended that the intended appeal has high chances of success due to the fact that the impugned judgement was premised on illegality and procedural irregularity because the trial court totally refused to heed to the applicant’s request to adopt the declaratory suit and have the motor vehicle released despite having determined Tigania PMCC No.60 of 2019 in his favour.

3. It was then contended that the applicant has no other source of income other than through the detained motor vehicle, which is a commercial vehicle for transportation of goods, and is ready to have the same released on condition that he shall ensure the decrees obtained from the trial court are executed within 3 months since he has no money whatsoever to deposit to the court or give the respondent so as to release the said motor vehicle. The application was said to have been filed without inordinate delay noting that the applicant obtained leave and stay of execution pending the hearing and determination of the declaratory suit which was subsequently determined on 18/12/2019. That the applicant is willing to abide by any conditions the court may find fit and just to impose in allowing the application. It is the applicant’s position that he and his family shall continue to suffer irreparable loss and damage if the orders sought herein are not granted. With leave of the court, the applicant filed a further affidavit on 04/03/2021 reiterating the averments in his affidavit in support of his application.

4. The respondent, Cecilia Kaembe Mwirichia, opposed the application by the replying affidavit sworn on 03/02/2021. She avers that she lodged PMCC No.27 of 2018 at Tigania Law Courts against the applicant after she was injured while aboard motor vehicle Registration number KBQ 716 K Toyota Probox owned by the applicant. The summons to enter appearance were indeed issued and on being served, the applicant entered appearance through the firm of Kinyanjui Njuguna & Company Advocates and the matter was subsequently heard and determined on merit in her favour against the applicant on 29/01/2019. The applicant then on 4/07/2019, filed an application to set aside the judgement but the application was dismissed even though the execution of the said judgement was stayed pending the hearing and determination of the declaratory suit filed by the applicant against Amaco Insurance Company. That the applicant’s right of appeal should be balanced against the respondent’s right to get the benefits of her judgement. That the application was bereft of merit and it ought to be dismissed with costs.

5. The application was directed to be canvassed by way of written submissions which were respectively filed on 08/03/2021 and 11/05/2021. For the applicant, submissions were made to the effect that he had demonstrated good and sufficient cause for not filing the appeal on time, the court should accept the said reasons and consider the memorandum of appeal on record as properly filed, in that the draft Memorandum of appeal has chances of success noting that he was not given any opportunity to be heard and thus the trial was unfair. It is contended that the applicant has suffered for more than two years since the attachment of his motor vehicle by rogue auctioneers on instructions of the respondent and therefore his application should be allowed in its entirety as prayed. The applicant relied on LSG Lufthansa Service Europa/Afrika GmBH v Eliab Muturi Mwangi(2019)eKLR and Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & anor (2018) eKLRin support of his position without pointing what pronouncements in the decision supported his position.

6. For the respondent, it was submitted that the applicant has not made out a case for extension of time to appeal as the reasons given for the almost 3 years’ delay are unsatisfactory; that no basis lad been laid for staying the execution of the decree when the respondent should be allowed to enjoy the fruits of her judgement, and lastly that it is only the applicant who can execute the declaratory judgement against his insurer as the same being non-transferrable to the respondent cannot be adopted as her judgement. The respondent relied on County Executive of Kisumu v County Government of Kisumu & 8 others (2017) eKLR, Andrew Okoko v Johnis Waweru Ngatia& anor (2018) eKLR,Peter Kinyari v Gladys Wanjiru Migwi & anor quoted in Thomas K. Sambu v Paul Chepkwony Koskei(2014)eKLRto support her position that orders of enlargement of time to appeal out of time and stay should not be granted.

7. The court on 29/01/2021 issued interim orders maintaining the status prevailing and restraining both the sale of the subject motor vehicle and further execution pending the hearing and determination of this application.

8. The principles for consideration on an application for extension of time to appeal out of time are established that the power is discretionary, and unfettered but the applicant must prove to the satisfaction of the court that the delay is not inordinate, reasons for delay must be plausible, that the appeal is arguable and not flippant or frivolous and that the respondent is not unduly prejudiced by the order being made. See Nicholas Kiptoo Korir Arap Salt v Independent Electoral & Boundaries Commission & 7 others (2014)eKLR.

9. I have given due regard to the length of delay and the explanation afforded for it. It is undisputed that the applicant filed several applications before the trial court including a declaratory suit against the insurance Company which was determined on 18/12/2019 and I have equally noted that the application now before court although dated 11/11/2020 was not filed till the 28/01/2021. I am therefore not convinced of the satisfactoriness of the explanation offered for the delay which I find to be implausible and the period itself as inordinate. It suffices not for the applicant to merely assert that time lapsed as he was attempting other ways to settle the matter without disclosing the details. I also find that explanation in the further affidavit to contradict the position taken in the affidavit in support that he did not appeal because of lack of finances. That contradiction paints the applicant as a litigant who lacks candour and consistency. That is not the conduct that should attract the courts discretion that flows from equity.

10. On the arguability or otherwise of the intended appeal, even though the grounds raised in draft memorandum may appear very weighty as raising critical questions including whether due process was followed in serving the pleadings, summons to enter appearance, notice of entry of judgement and notice of attachment of movable property upon the applicant, one question that stands out and out of doubt is the fact that there was an Appearance filed on behalf of the applicant by Kinyanju Njuguna & Co advocates. For that reason alone, I hold that it would be inappropriate to extend time and grant leave to appeal out of time. I do find this to be a classicus case for the court to apply the principle of finality and tell the applicant that having chosen to enforce the judgment by a declaratory suit, it should not come from him to now seek to challenge the very decree he was all intent to execute for a period of two years. I do therefore find that the application for extension of time is meritless and order that it be dismissed.

11. Having dismissed the application for extension of time, the question of stay pending appeal becomes moot and untenable. However, both parties agree that there was a declaratory suit that was file and upon which the applicant was granted stay pending determination. That suit is said to have been determined in favour of the applicant and a copy of the judgment was duly exhibited to court. That judgment is clear that the applicant was relieved of all liability for payment of any decrees in favour of third parties ensuing from the accident subject of the suit in Tigania PMCC 27 of 2018

12. On whether the court should adopt the declaratory judgement of the trial court in Tigania PMCC 60 of 2019, I find that the applicant should have taken up that issue with the court that made the said decision by way of having the decree enforced. This court cannot purport to execute the decree issued by the Tigania court by a process the applicant calls adoption.

13. However, I cannot agree with the respondent that it is only the applicant who can execute the said decree against his insurer because the respondent was not a privy to the contractual agreement between the two. There is valid decree that must be given effect. That decree has in fact declared that the defendant, Amaco Insurance Company Limited, satisfies 3rd party claims against the applicant including the claim in in Tigania PMCC 27 of 2018. That declaration effectively supplants the obligation of the applicant in Tigania PMCC 27 of 2018 upon the insurer, Amaco Insurance Co ltd. It is not therefore open to the respondent to ignore that decree by merely stating that it is only the plaintiff that can execute it. I consider the judgment at second paragraph of page 6 of the judgment to bind all including every decree that may arise out of the accident involving the subject motor vehicle while the particular policy No AMJ/070/1. 038659. 2016 was in force.

14. In my judgment it would be utterly unjust to expose the applicant to the obligation of a decree the court has relieved him of. It would also be an act in disregard of the declaratory order to allow the execution in the primary suit to continue. In those circumstances, I do invoke the courts inherent powers and make the following orders:

a) Let the motor vehicle Reg. No. KBQ 716K be released to the applicant upon running attachment, for a period of 90 days from today on conditions that the same be not sold or alienated in any way, pending the realization of the decree in Tigania PMCC 27 of 2018.

b) As the declaratory suit has afforded to the applicant full indemnity, let the auctioneer have his costs assessed and be paid as part of the decree in Tigania PMCC 27 of 2018 by Ms Amaco Insurance Co Ltd.

c) Because seeking to appeal against the decree in the primary suit was not the most appropriate way for the applicant to get his relief while the respondent had no justification at all to ignore the valid declaratory decree, I do order that, each party in these proceeding will bear own cost.

d) This matter be mentioned on 30/9/2021 to confirm settlement of the respondent’s decree

DATED SIGNED AND DELIVERED AT MERU VIRTUALLY BY MICROSOFT TEAMS THIS 14TH DAY OF JUNE 2021

In presence of

Mr. Nkunja for respondent

No appearance for Kobia for appellant

PATRICK J O OTIENO

JUDGE