[2022] KEHC 17057 (KLR)

Jocham Hospital Limited v Musyimi (Civil Appeal 167 of 2021) [2022] KEHC 17057 (KLR) (14 October 2022) (Ruling)

Neutral citation: [2022] KEHC 17057 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 167 of 2021

MN Mwangi, J

October 14, 2022

Between

Jocham Hospital Limited

Applicant

and

Penina Njeri Musyimi

Respondent

Ruling

1. On February 11, 2022, the applicant filed a notice of motion dated February 9, 2022 brought under the provisions of order 22 rule 22, order 42 rule 6, order 50 rule 6 and order 51 rules 1 and 3 of the Civil Procedure Rules, 2010, sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act, cap 21 of the Laws of Kenya and all other enabling provisions of the law. The applicant seeks the following orders-i.Spent;ii.Spent;iii.That this honourable court be pleased to stay execution of the judgment and decree in Mombasa Magistrate Court Civil (sic) No 526 of 2019 pending the hearing and determination of the appeal;iv.That this honourable court be pleased to grant leave to the applicant/ appellant to appeal out of time against the judgment of the Honourable Magistrate C Ndegwa, Senior Principal Magistrate, in Mombasa Civil Suit No 526 of 208 (sic) delivered on August 25, 2021;v.That the already filed memorandum of appeal dated October 1, 2021 be deemed to be properly filed and on record; andvi.That the costs of this application abide the outcome of the appeal.

2. The application is anchored on a supporting affidavit and a further affidavit sworn by Nathan Kiplagat, the chief administrator of the applicant company on February 9, 2022 and April 5, 2022, respectively. In opposition thereto, the respondent on February 21, 2022 filed a replying affidavit sworn on the same day by Peninah Njeri Musyimi.

3. The application was canvassed by way of written submissions. The applicant’s submissions were filed by the law firm of Bosire & Partners Advocates on April 7, 2022, whereas the respondent’s submissions were filed on April 11, 2022 by the law firm of Masore Nyang’au & Company Advocates.

4. Mr Bosire, learned counsel for the applicant relied on the provisions of order 42 rule 6 of the Civil Procedure Rulesand submitted that the applicant is in compliance with the said provisions as it filed its memorandum of appeal on October 4, 2021. He submitted that an appellant has a constitutional right to ventilate its appeal without fear that an execution is going to be levied against it pending the hearing of the said appeal. He relied on to the case of James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR. He also relied to the case of Selestica Limited v Gold Development Ltd [2015] eKLR and submitted that the purpose of an application for stay of execution pending appeal is to preserve the subject matter in dispute, so as to safeguard the appellant’s rights.

5. The applicant’s counsel stated that the applicant’s appeal has very high chances of success as it raises triable issues such as the trial court’s award which was inordinately high for the injuries suffered by the respondent in the face of the evidence adduced. He expressed the view that the being granted the orders sought for stay of execution is the only way in which the competing interests of the parties herein can be balanced, pending the hearing of the said appeal.

6. On the issue of whether the appeal and the application herein were filed expeditiously, Mr Bosire stated that the decree in the subordinate court was issued on September 23, 2021 whereas the memorandum of appeal was filed on October 4, 2021. He also stated that the application herein was filed on February 12, 2022 after an application for stay of execution pending appeal was dismissed by the trial court on February 9, 2022. He submitted that pursuant to the provisions of section 79G of the Civil Procedure Act, the memorandum of appeal and the application herein were filed timeously.

7. On the issue of substantial loss, Mr Bosire submitted that should the appeal be successful and having settled the decretal sum as it presently stands, the applicant will be prejudiced since the respondent has not discharged the evidential burden required by showing that she is financially stable and capable of repaying any monies that may ultimately be found due to the applicant. He referred to the case of Absalom Dova v Tarbo Transporters [2013] eKLR cited in the case of HGE v SM [2020] eKLR and submitted that if the orders sought herein are not granted, the respondent will proceed with the execution and the appeal will be rendered nugatory.

8. On the issue of security, he submitted that the grant of an order for the deposit of security is discretionary and it is not a prerequisite for issuance of the order for stay pending appeal. He submitted that this court is enjoined by the overriding objective of section 1A of the Civil Procedure Act to facilitate just, efficient, expeditious, proportionate and reasonable resolution of civil disputes as opposed to imposing punitive terms and conditions for stay of execution.

9. He relied on the case of Housing Finance Company of Kenya v Sharok Kher Mohamed Ali Hirji & another [2015] eKLR, where the court cited the case of Kenya Hotel Properties Ltd v Willesden Properties Limited [2007] eKLR and submitted that the court ought to exercise its discretion so that the hearing of an appeal is not fettered by any pre-conditions, since an appeal ought to be heard expeditiously. In addition, Mr Bosire submitted that the applicant herein is a hospital which ought to serve the public and an order for the deposit of a colossal sum of Kshs 2,855,604. 60 will not only dent its operations but will also cause strain to the applicant which is seeking to be heard on appeal.

10. Mr Masore, learned counsel for the respondent relied on the case of Kenya Wildlife Service v James Mutembei[2019] eKLR, where the court held that stay of execution is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation since it impinges on the right of access to justice, the right to be heard without delay and the overall right to a fair trial. In submitting that the appeal herein was filed out of time, he relied on the case of Raymond Maraga Nyambisa v Jeniffer Kanini Nzile & another [2016] eKLR. He stated that emerging jurisprudence places premium on the advocate to personally explain away delay in filing of an appeal in order for the applicant to be exonerated. To this end, he relied on the Court of Appeal decision in Hawkwind Corporation (The owners of “The MV Kairos) v African Marine and General Engineering[2020] eKLR.

11. On the issue of substantial loss, Mr Masore submitted that the respondent demonstrated during trial that she runs a successful wholesale business. He cited on the case of Jessikay Enterprises Ltd v George Kahoto Muiruri [2022] eKLR, where Judge Meoli in disallowing an application for stay of execution held that the applicant having failed to establish the likelihood of substantial loss could not be heard to submit that the respondent had not proven his means.

12. On the need for security, Mr Masore relied on the case of Daniel Gicheru Karangu v Richard Gicheru Irungu [2015] eKLR and submitted that the applicant herein has neither furnished security for the due performance of the decree nor proposed the kind of security it intends to furnish. He stated that the case of HE v SM (supra) relied on by the applicant is not applicable herein since it was a dispute between an elderly married couple over matrimonial property which is apportioned equally amongst the parties to a marriage pursuant to the provisions of article 45(3) of the Constitution.

Analysis And Determination. 13. I have considered the application filed herein, the grounds on the face of it and the affidavits filed in support thereof, the replying affidavit by the respondent and the written submissions by counsel for the parties. The issues that arise for determination are-i.Whether the appeal and the application herein were filed timeously;ii.Whether this court should extend time for the applicant to file an appeal; andiii.Whether the applicant has satisfied the conditions to warrant an order for stay of execution.

14. In the affidavit filed by the applicant, it deposed that on August 25, 2021 judgment was delivered against it, but being aggrieved and dissatisfied with the said judgment, it instructed its advocates on record to lodge an appeal against it thus a memorandum of appeal was filed on October 4, 2021. The applicant contended that its former advocates failed to file any application and/or appeal and have never communicated to the applicant. In addition, it stated that the delay on its part was highly regretted, since the applicant had nothing to do with it as it was its former advocate who failed to update it on the progress of the matter thus the applicant should not be penalized for the mistakes of its advocate.

15. It was stated by the applicant that it had sought for certified copies of the proceedings and ruling to enable it ventilate its appeal. It further stated that the judgment/decree entered is of a substantial sum of money and the applicant is apprehensive that if the respondent is paid and the appeal is successful, it might not be able to recover the same from the respondent whose means are unknown.

16. The applicant averred that it is ready and willing to comply with such terms and conditions that will be set by the court in so far as furnishing of security is concerned. The applicant further averred that the respondent has served it with a proclamation notice thus a stay of execution is necessary.

17. The respondent in her replying affidavit deposed that judgment was delivered by the trial court on August 25, 2021 and thereafter, it extracted the decree and begun execution. The respondent averred that Five Eleven Traders & Auctioneers visited the applicant’s premises on September 22, 2021 and carried out a proclamation of attachment but the applicant filed an application similar to this one in the lower court dated October 4, 2021 upon maturity of the said proclamation, but the said application has since been dismissed.

18. It was stated by the respondent that the application herein ought to be dismissed since it is anchored on a memorandum of appeal that has been filed out of time and without leave of the court. The respondent deposed that contrary to the averments contained in paragraph 4 of the applicant’s supporting affidavit, the applicant’s former advocates on record swore an affidavit on March 30, 2021 deposing that he has since managed to obtain the applicant’s witnesses’ contacts with whom he maintains correspondence.

19. In response to the respondent’s replying affidavit, the applicant filed a further affidavit where it deposed that the application herein was filed after the application dated October 4, 2021 was dismissed by the trial court on February 9, 2022. It averred that the memorandum of appeal was filed on October 4, 2021, while the decree from which the appeal herein lies is dated September 23, 2021.

Whether the appeal and the application herein were filed timeously. 20. The time for filing appeals from subordinate courts is provided for under section 79G of the Civil Procedure Act as follows-“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 good and sufficient cause for not filing the appeal in time.”

21. The applicant submitted that the decree in the lower court was issued on September 23, 2021, whereas the memorandum of appeal was filed on October 4, 2021, thus the appeal was lodged within the prescribed time. It is however worth noting that one of the prayers sought by the applicant herein, is for leave to appeal out of time and for the memorandum of appeal dated October 1, 2021, to be deemed as having been properly filed and on record. The applicant further seeks this court’s interpretation of section 79G of the Civil Procedure Act.

22. It is evident from a reading of section 79G of the Civil Procedure Act that an appeal to the High Court shall be filed with 30 days from the date of the decree or order appealed against. To aptly interpret the said provisions, one needs to understand what a decree is. Section 2 of the Civil Procedure Act provides as follows-“…Provided that, for the purposes of appeal, “decree” includes judgment, and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up…” (emphasis added).

23. From the above provisions, it can easily be deduced that the time within which an appellant can lodge an appeal starts running from the date of delivery of judgment and not from the date of issuance of the decree. This is so because, after a judgment is delivered, a party is at liberty to apply for issuance of a decree at any time thereafter. It therefore means that the provisions of section 79G of the Civil Procedure Act were to be construed to mean that time starts running from the date of issuance of the decree, a successful party will be prejudiced if the process of approval of a decree and issuance of the same was to be prolonged.

24. The applicant has not stated whether it applied for a decree immediately after the delivery of the judgment. All that can be seen is a letter dated September 30, 2021 which was received at the Chief Magistrate’s Court’s registry on October 4, 2021, where the applicant sought to be supplied with certified copies of the proceedings and judgment for purposes of lodging an appeal.

25. The trial magistrate delivered his judgment on August 25, 2021, therefore in line with the provisions of section 79G, the applicant ought to have filed a memorandum of appeal on or before September 24, 2021. Therefore, this court finds that the memorandum of appeal dated October 1, 2021 was filed out of time and without leave of court.

Whether this court should extend time for the applicant to file an appeal. 26. This court has discretionary powers to consider applications for extension of time within which to lodge an appeal pursuant to section 79G which provides that in the event an appeal is not lodged within 30 days as prescribed, it may be admitted out of time if the appellant satisfies the court that there was sufficient reason for not filing the appeal in time. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR when allowing an application to extend time within which to lodge an appeal stated the following -“This being the first case in which this court is called upon to consider the principles for extension of time, we derive the following as the underlying principles that a court should consider in exercise of such discretion:1. extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;2. a party who seeks…extension of time has the burden of laying a basis to the satisfaction of the court;3. whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;4. [where] there is a reasonable [cause] for the delay, the delay should be explained to the satisfaction of the court;5. whether there will be any prejudice suffered by the respondents if the extension is granted;6. whether the application has been brought without undue delay; and,7. whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

27. As stated earlier in this ruling, the appeal herein ought to have been filed on or before September 24, 2021 but the memorandum of appeal was filed on October 4, 2021. In order for this court to exercise its discretion, the applicant has a duty and/or obligation to give a plausible explanation as to the delay in lodging an appeal within the 30 days provided in law.

28. The applicant contended that its former advocates failed to file any application and/or appeal and have never communicated to the applicant. The applicant further contended that its former advocates failed to update it on the progress of the matter and it should not be penalized for the mistakes of its advocates. The respondent on the other hand averred that the applicant’s former advocates on record swore an affidavit on March 30, 2021 deposing that he has since managed to obtain the applicant’s witnesses’ contacts with whom he maintains correspondence.

29. The applicant blames its former advocates on record for failing to lodge the appeal in time. The only way this court could have ascertained whether or not they caused a delay in filing an appeal against the trial magistrate’s judgment would have been by an affidavit annexed to the applicant’s application sworn by the said advocates deposing to the said facts. That was however not done. In addition, the letter dated September 30, 2021 annexed to the applicant’s supporting affidavit sought certified copies of the proceedings and judgment as the 2nd defendant who is the applicant herein wished to appeal.

30. I am of the considered view that the applicant’s wish and/or intention to appeal against the trial magistrate’s decision came alive on September 30, 2021 by virtue of the letter of even date, since from the applicant’s submissions, it is apparent that it believed that it ought to have filed its appeal on or before October 23, 2021. It is noteworthy that throughout the proceedings before the lower court the applicant was represented by counsel, hence it must have exercised its options consciously. This court finds that the delay in lodging the appeal has not been sufficiently explained

31. Equity only aids the vigilant and not the indolent hence the applicant cannot rush to court hiding behind the fact that it should not be punished for its former advocates’ mistake and fail to give sufficient explanation as to what occasioned the delay in lodging an appeal in good time. This court finds that the application for extension of time to file appeal out of time is bereft of merit.

32. In light of the fact that the application for extension of time to file an appeal out of time is found to be without merit, this court will not deal with the issue of stay of execution since that would be an academic exercise as there is no pending appeal before this court. I am guided by the Court of Appeal’s holding in Nguruman Limited v Shompole Group Ranch & Another[2014] eKLR, where a five judge bench held that in the absence of a notice of appeal against the ruling of Judge Ang’awa, the court lacked jurisdiction to grant any relief against the said ruling. In this instance, having found that no explanation has been brought forth in regard to the delay in filing an appeal by the advocates who are said to have been initially instructed by the applicant, the memorandum of appeal on record cannot be deemed as being properly on record.

33. The upshot is that the notice of motion dated February 9, 2022 lacks merit and the same is dismissed with costs to the respondent.It is so ordered.

DATED, SIGNED AND DELIVERED AT MOMBASA ON THIS 14TH DAY OF OCTOBER, 2022. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Mr. Bosire for the appellant/applicantMr. Masore for the respondentMr. Oliver Musundi – Court Assistant.