[2017] KEHC 433 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

MISC. APPLICATION NO. 41 OF 2017

JOSEPH MWAI.……………………………………….APPLICANT

V E R S U S

PAUL MAINA KAMAU …………………….……..RESPONDENT

R U L I N G

The application before me is the Notice of Motion filed on 15th June 2017, by Joseph Mwai – (the applicant) against Paul Maina Kamau (the respondent). It is brought under Order 42 rule 6(1) of the Civil Procedure Rules, sections 1A, 1B, and 3A of the Civil Procedure Act, Article 159 (2) (d) and (e) of the Constitution and all enabling laws.

It seeks orders;

1. That this application be certified as urgent and service be dispensed with in the first instance

2. That this Honourable Court be pleased to grant temporarily stay of execution of the judgment entered against the intended appellant/applicant on 1st December, 2016 and all consequential orders including lifting of the warrants of arrest issued herein pending the hearing and determination this application and/or until further orders of this honourable court.

3. That this honourable court be pleased to grant stay of execution of the judgment entered against the intended appellant/applicant on 1st December, 2016 and all consequential orders pending the hearing and determination of the applicant’s intended appeal and/or until further orders of this honourable court.

4. That this application be served and heard inter-partes at a hearing date to be granted by this honourable court.

5. That the applicant be granted leave to secure the entire decretal sum and costs amounting to Ksh. 743,335/= by depositing the same in a joint interest earning account in the names of Counsels for both parties as a condition for stay and or such other orders as the honourable court may deem it fit to grant.

The grounds for the application were:

1. That the applicant being dissatisfied with the said judgment delivered on 1st December, 2016 have since filed an application for leave to file an appeal out of time against the same.

2. That there is at present, real and justifiable fear and/or risk that the applicant herein will be arrested and committed to civil jail in execution of the decree thereby occasioning substantial loss to the applicant and the appeal will be rendered nugatory.

3. That the respondent is a man of straw and the applicant is reasonable apprehensive that if the decretal amount is paid over to the respondent he would not be in any position whatsoever to refund the same should the applicant’s appeal be successful

4. That if the said stay of execution is not granted the applicant’s appeal will be rendered nugatory as the respondent cannot refund the colossal decretal amount or restitute the applicant to his position.

5. That the applicant is ready and willing to deposit the entire decretal sum of Ksh. 743,335/= in a joint interest earning account in the names of counsels for both parties as a condition for stay in order to safeguard the colossal amount

6. That this application has been made without any unreasonable delay.

7. That this application ought to be granted in the interest of equity and justice and to enable parties ventilate their appeals.

It is supported by the affidavit of Joseph Mwai, Legal Officer UAP Insurance Company Limited, the insurer of the applicant.

The main ground is that judgment in Nyeri CMCC No. 84 of 2016 was delivered on 1st December 2016 where respondent was awarded General Damages of Ksh. 700,000/= and specials of 5,578 plus costs and interest.

That after they learnt of the judgment the file was given to the legal officer Ruth Munyangi to give instructions their lawyers to appeal but unfortunately she left without giving those instructions, and they only came to learn about that omission when the insured was served with notice to show cause.

A copy of the memorandum of appeal, notice to show cause, notice of the judgment from the applicant’s advocates to them informing them of the judgment the lower court are annexed.

The application is opposed through a replying affidavit filed on 2nd June 2017 sworn by Wagiita Theuri advocate for the respondent; that the application has no basis in law as there are rules as to when an appeal ought to be filed, and not 7 months after the judgment. That the same is not only frivolous, vexatious abut also an abuse of the court process.

That the advocates for the applicant had advised the applicant that the judgment was fair, and hence there was no arguable appeal.

In their written submissions, counsel for the applicant argued under s.79 G and 95 of the Civil Procedure Act that a late appellant could be allowed to file an appeal out of time. He relied on the cases Banking Insurance & Finance Union V. Harambee Co-operative Savings & Credit [2015]eKLR, Lucy Wambui Maina & 2 others vs. Peter Sundra Maina [2005]eKLR and Johnson Ndung’u Njoroge vs. George Waweru Muchai [2014]eKLRwhere the courts upheld the ruling inBelinda Murai & 9 others V. Amos Wainaina, CA No. NAI 9 of 1978 and stating;

“A mistake is a mistake. It is no less a mistake because it is an unfortunate slip… The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that courts of justice themselves make mistakes which is politely referred to as erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule…”

He also relied on the case of case of Philip Chemwolo & Anor. Vs. Augustine Kubede, [1982-88]KAR 103 at 1040 quoted in Banking Insurance & Finance Union V. Harambee Co-operative Savings & Credit Society [2015]eKLR where the court with approval held;

“Blunder will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit. I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court as is often said exists for the purpose of deciding the rights of parties and other purpose of imposing discipline.”

He also urged the court to use its wide and unfettered discretion to grant the application. He relied on the case of Fredrick Mutonyi Gitonga vs. Isaiah Mutonyi Wambugu & Anor.[2015]eKLR where the court set out the guidelines of the discretionary nature of the orders sought and the factors to be considered when exercising the discretion of the court.

The respondent’s counsel in his written submissions pointed out the principles for grant of stay;

a. The appeal or intended appeal is arguable and not frivolous

b. Unless the stay is granted the appeal or intended appeal would be rendered nugatory.

That since no appeal or intended appeal had been filed, or application for leave to file an appeal out of time, principle a. was not applicable. Consequently, principle b. was rendered inapplicable. Arguing that parties are bound by their own pleadings, he urged the court to follow the holdings in In Nairobi HCCA 219/13 IEC v. Leonard Okemwa & othersandHigh Court(NBI) Civil Appeal No. 158/12 Francis Mburu vs. Moses Omuse & others.

The issue for determination is whether the application for stay of execution pending appeal has merit.

Order 42 rule 6 provides for stay pending appeal.

Rule 6(1) provides;

(1) No appeal or second appeal shall operate as a stay of execution or proceedings 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 application being made, to consider such application and to make such order thereon as may to 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.

The starting point is the existence of an appeal.

The first ground for this application on the face of the application is that “the applicant being dissatisfied with the said judgment delivered on 1st December, 2016 has since filed an application for leave to file an appeal out of time against the same”.

I found no such application, and if it was filed elsewhere no such annexure was filed with the supporting affidavit. The prayers sought in this application as set out herein above do not include any prayer for leave to file an appeal out of time.

The first time the court gets to hear about leave to appeal out of time is in the submissions where counsel for the applicant cites section 79G which provides that an appeal may be admitted out of time, after the 30days, if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time, and Section 95 which provides for enlargement of time. With due respect to counsel, that is not tenable as he would be asking the court to rule on an issue that was not raised in the application, not urged before me and not responded to by the adverse party.

In Nairobi HCCA 219/13 IEC v. Leonard Okemwa & others the court upon an analysis of various authorities stated;

“As the authorities do accord with our own way of thinking, we hold them to be representative of the proper legal position that parties are bound by their pleadings which in turn limits the issues upon which a trial court may pronounce itself”.

And HC (NBI) Court of Appeal No. 158/12 Francis Mburu vs. Moses Omuse & others that;

“parties are bound by their pleadings.” If, during litigation, a party wishes to change the basis of this case, there are processes in law of doing that, through amendment. That is why amendment of pleadings are freely allowed at any stage of the proceedings...”

There is no appeal filed, no application to file an appeal out of time and the first leg of the application fails.

Rule 6(2) provides:

No order for stay of execution shall be made under sub rule (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. (emphasis added)

It was argued by the applicant that this court has wide and unfettered discretion. The applicant placed before me the case of Fredrick Mutonyi Gihega v. Isaiah Mutonyi Wambugu & Anor. [2015] eKLR, where the judge in considering an application for extension of time stated:

“…. and in an application under Rule 4 for extension of time for the doing of a thing the time whereof is limited by the Rules, is an appeal to the discretion of a single judge. The discretion is large and unfettered and a judge exercises it for the furtherance of the ends of justice. Wide and unfettered though it be, the discretion is not exercised in a whimsical or capricious fashion in accordance with a Judge’s personal preferences. It is a judicial discretion exercised judicially and judiciously on the basis of reason and sound principle. Parties therefore need not grope in the dark, cross their fingers or tear at their hair to decipher what a judge might consider in granting or disallowing an application. Those considerations are known. Indeed, they are quite trite.

While this and the other authorities cited by the applicant are distinguishable as they are brought before me in support of the non-existent application for extension of time, this speaks to the issue of the exercise of judicial discretion. The applicant brought this application for stay 7 (seven) months after the judgment. There is nothing placed before me to show that there was any attempt to instruct counsel to appeal. The letter annexed by counsel for the applicant to the Claims Manager UAP Insurance clearly indicates that the legal advice was that the judgment was fair.

The delay is telling. The applicant was aware of the judgment all this time. It was not sneaked at them, or rendered in their absence. There was no apprehension of substantial loss hence the lethargy in taking action. The delay is inordinate and inexcusable. The discretion of the court must be exercised in furtherance of the ends of justice. This case is not deserving.

I find that this application for stay of execution pending appeal is not merited and must fail.

It is dismissed with costs to the respondent.

Right of Appeal 30 Days

Dated, delivered and signed this 5th Day of December 2017 at Nyeri

Teresia Matheka

Judge

In the presence of;

Court Assistant Hariet

Mr. Muthee holding brief for Mr. Kibicho for the applicant

Mr. Macharia holding brief for Mr. Wagiita Theuri for the respondent