[2022] KEHC 13695 (KLR)

Kairanya v M'aburuki & another (Miscellaneous Civil Application E013 of 2021) [2022] KEHC 13695 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13695 (KLR)

Republic of Kenya

In the High Court at Meru

Miscellaneous Civil Application E013 of 2021

EM Muriithi, J

October 6, 2022

Between

Elijah Kirugi Kairanya

Applicant

and

Bernard Ntongai M'aburuki

1st Respondent

Francis Mugira Mungama

2nd Respondent

Ruling

1. Before this court is a notice of motion under certificate of urgency dated May 27, 2022 by the applicant, Elijah Kirugi Kairanya, brought under order 22 rule 22, order 42 rules 4, 6 and 7, order 51 rules 1 and 3 of the Civil Procedure Rules, sections 3, 3A and 79G of the Civil Procedure Actand all other enabling provisions of the law. The applicant seeks stay of execution of the judgement/decree issued by Honorable PM Wechuli (SRM) in Tigania CMCC No 40/2016 pending the hearing and determination of the application and intended appeal; and enlargement of time within which the applicant can comply with the court’s directions of December 16, 2021.

2. The court on 2/6/2022 issued an order that the status quo be maintained.

3. The application is supported by the grounds on the face of the application and an affidavit sworn by Sharon Laboso, the applicant’s advocate on even date. She avers that the applicant filed an application dated 1/3/2021 for leave to file an appeal out of time, which was determined videa ruling dated 9/12/2021, and delivered in the absence of the parties on December 16, 2021. The failure to file the memorandum of appeal in time was not intentional, as the ruling was delivered after the 7 days period had lapsed, and the parties had not been notified. She urges that unless the time within which the applicant should comply with the orders of 9/12/2021 is enlarged, the applicant will suffer substantial and irreparable loss and damage. She avers that the applicant is apprehensive that the respondents may levy execution, and it is the interest of justice that the application is allowed in view of the prevailing circumstances of impeding attachment of the applicant’s movable properties. She avers that the application is made in good faith, has been brought without unreasonable delay and it will not occasion any prejudice to the respondents.

4. The application was opposed by the replying affidavit sworn by Ayub Anampiu, the 1st respondent’s Advocate, on 3/6/2022. He avers that the application is frivolous, made in bad faith and an abuse of the court process, because the applicant, who has been extremely indolent, only intends to frustrate the 1st respondent from getting the fruits of his judgment by all means. He avers that the applicant’s counsel was duly informed of the content of the judgment in court through letters but he did not take any steps to either appeal or pay the decretal sum plus costs. He avers that the applicant filed an application dated 1/3/2021 for leave to appeal out of time and stay of execution after the 1st respondent commenced execution proceedings. That application was heardinter partes and a ruling was delivered on 9/12/2021, in the presence of both counsels. He accuses the applicant’s counsel of misleading the court by stating that the ruling of 9/12/2021 was delivered in their absence. He also faults the applicant for failing to explain what action he took since 9/12/2021, and asserts that the application for leave to appeal out of time is already spent and concluded. He avers that the ruling of 9/12/2021 was duly communicated to the applicant’s counsel vide email and the 7 days for filing the appeal started running from 9/12/2021.

5. The 1st respondent, vide his written submissions filed on 3/6/2022, urges that the application lacks merit and the same is a total abuse of the court process, because the ruling of 9/12/2021 was delivered in the presence of the applicant’s counsel. He submits that no explanation has been given of where or what the applicant did after realizing that the 7 days, within which to appeal, window had closed. He urges the court to dismiss the application and bring the litigation herein to an end, as the applicant has been totally indolent and only woke up when execution proceedings commenced.

Determination 6. On 1/3/2021, the applicant approached the court seeking stay of execution of the judgment delivered on December 15, 2020 in Tigania CMCC No 46 of 2016 and leave to appeal out of time against the said judgment. The court, vide its ruling dated and delivered on 9/12/2021 rendered itself thus;i.Leave is hereby granted to the applicant to file his appeal out of time on condition that he files a memorandum of appeal within 7 days from the date of this order.ii.The applicant’s prayer for stay of execution of the judgment delivered on December 15, 2020 in Tigania CMCC No 46 of 2016 is hereby declined.iii.The costs of this application shall abide the outcome of the appeal.

7. The applicant contends that he was prevented from lodging his memorandum of appeal on time because he was unaware of the said ruling, since it was delivered on December 16, 2021, in his and/or counsel’s absence.

8. The record shows that counsel for the applicant and the 2nd respondent were present in court on November 16, 2021 when the date for the delivery of the ruling was set for 9/12/2021. It appears that although the ruling is dated the 9th of December 2021, it was indeed delivered on December 15, 2021 in the absence of the parties. Nonetheless, on December 15, 2021 at 4. 44 pm, the counsel for the respective parties were emailed by the court the copy of the ruling of 9/12/2021.

9. The applicant has not offered any explanation why, after receipt of a copy of the court’s ruling on December 15, 2021 via email, he did not attempt to comply with those orders and lodge his memorandum of appeal forthwith. The applicant’s counsel acknowledges knowing that the ruling of 9/12/2021 was delivered on December 16, 2021, and yet did nothing towards complying with the orders issued therein. This court must express its displeasure with the counsel for the applicant’s indolence in handling this matter. Counsel for the applicant waited from December 15, 2021 to May 27, 2022 to file the instant application, to seek extension of time to comply with the court orders of 9/12/2021. Although the unexplained delay of approximately 5 months cannot be said to be reasonable, this court is still inclined to protect the applicant’s undoubted right to appeal against the said decision, and to uphold the applicant’s interest over the mistake of counsel by inadvertent error, indolence or lethargy.

10. In the interest of justice therefore, this court will allow the application dated 27/5/2022 in the following terms:1. Leave is hereby granted to the applicant to file his appeal out of time on condition that he files a memorandum of appeal within 7 days from the date hereof, in default of which the appeal shall stand dismissed.2. For the avoidance of doubt, no stay of execution has been granted in this matter by the ruling of December 15, 2021 or the present ruling.3. The cost of this application shall be borne by the applicant’s counsel for prosecuting this matter with less than due diligence.

DATED AND DELIVERED THIS 6THDAY OF OCTOBER, 2022. EDWARD M. MURIITHIJUDGEAPPEARANCES:M/S Kimondo Gachoka & Co. Advocates for the Applicant.M/S Ayub Anampiu & Co. Advocates for the Respondent.M/S Mutembei & Kimathi Advocates for the 2nd Respondent.