[2023] KEHC 24661 (KLR)

Kamau (Acting as the personal representative of Francis Thuo Kamau t/a Segero Club & Bar) v Odhiambo & 2 others (Civil Appeal 24 of 2019) [2023] KEHC 24661 (KLR) (3 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24661 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 24 of 2019

JRA Wananda, J

November 3, 2023

Between

Stephen Thuo Kamau (Acting as the personal representative of Francis Thuo Kamau t/a Segero Club & Bar)

Applicant

and

Justin Peter Odhiambo

1st Respondent

Panvilla Company Distributors

2nd Respondent

Kenya Breweries Limited

3rd Respondent

Ruling

1. There are two Applications for determination in this consolidated Ruling. The first one is by the Appellant and seeks enlargement of time to comply with orders issued on 9/03/2021 by the Court requiring the Appellant to deposit security for costs. The second one is by the 1st and 3rd Respondents and seeks to strike out this Appeal for failure by the Appellant to comply with the said orders requiring deposit of security for costs.

2. Unfortunately, the Appellant passed away on 22/09/2022. Pursuant thereto, by the orders made on 21/02/2023, he was substituted in this Appeal with his legal representative.

3. In full, the 1st Application, filed through Messrs Wambua Kigamwa & Co. for the Appellant, is the Notice of Motion dated 27/05/2022 and seeks following orders:i.Spent.ii.The time for complying with the order made on the 9th March 2021 requiring the Appellant to give half the security for costs amounting to Kshs. 473,931 (Four Hundred and Seventy-Three Thousand, Nine Hundred and Thirty-One) being the security for the claim be enlarged.iii.The costs of this Application be provided for.

4. The Application is expressed to be brought under Order 42 Rule 14 and Order 50 Rule 6 of the Civil Procedure Rules and Section 95 of the Civil Procedure Act. It is premised on the grounds set out thereon and is supported by the Affidavit sworn by the Appellant (now deceased as aforesaid).

5. In the Affidavit, the Appellant deponed that on 9/03/2021 the Court made an order directing him to deposit security for costs for the Appeal, he had difficulties in raising the amount ordered as it was during the COVID 19 pandemic which led to closure of his businesses especially his pork eatery business which was shut down as a result of government directions, he sought Review of the order to enable him tender a bank guarantee but the Court declined the same, he has now managed to raise the funds, however the period granted for depositing the same has lapsed and he therefore prays for enlargement of time to enable him comply.

6. The 2nd Application, filed through Messrs Nyairo & Co. Advocates for the 1st and 3rd Respondents, is the Notice of Motion dated 27/06/2022 and seeks following orders:iv.Spent.v.That the Appellant/Respondent’s Memorandum of Appeal and the Record of Appeal on record be struck out and/or dismissed for failure to comply with the order of the Court of 9th March 2021 requiring the Appellant/Respondent to deposit half (½) costs as security for costs of Kshs 473,931 in a joint interest earning account in the names of the Advocates on record herein pending admission of Appeal.vi.That upon the grant of prayer 2 above, the Appellant/Respondent do pay the 1st and 3rd Respondent/Applicants cost of Kshs 212,920/= being party and party costs that were awarded in the Subordinate Court.vii.The costs of this Application be provided for.

7. The Application is expressed to be brought under Section 1, 1A, 3 and 3A of the Civil Procedure Act, Order 42 Rule 14(3), Order 51 Rule 1 of the Civil Procedure Rules and “all other enabling provisions of the law”. It is premised on the grounds set out on the face thereon and is supported by two respective Affidavits, the first one sworn by the 1st Respondent, Justin Peter Odhiambo and the second one by one Timothy Wanjau who described himself as a representative of the 3rd Respondent.

8. In his Affidavit, the 1st Respondent deponed that on 9/03/2021 the Court ordered the Appellant to deposit a sum of Kshs 473,931/= being half (½) security for costs for his claim into a joint interest earning account to be opened by the Advocates herein within 30 days pending admission of the Appeal, being dissatisfied with the order, the Appellant filed an Application seeking Review of the orders to, instead, provide a bank guarantee, on 17/2/2022 the Court dismissed the Application, to date the Appellant has ignored and/or disregarded and/or failed to comply with the order to deposit security and has made no attempt to comply, the 30 days period given for complying with the order has since lapsed, therefore the Appeal ought to be struck out and/or dismissed, Court orders are not for decorative purposes, non-compliance with Court orders is a serious offence and a party who blatantly disobeys the Court ought not receive/enjoy the Court’s services.

9. The second Affidavit, sworn by the said Timothy Wanjau is along the same lines as the one already sworn by the 1st Respondent.

1st & 3rd Respondent’s Replying Affidavit 10. In opposition to the Application seeking extension of time to deposit security, the 1st Respondent swore the Replying Affidavit filed on 13/06/2022. He deponed that the Application is Res Judicata to the extent that in his Application dated 31/03/2021, the Appellant sought the very orders being sought, in its Ruling delivered on 17/02/2021, the Court dismissed the Application, no reasonable cause has been shown to warrant enlargement of time, the order is being sought after more than one year, Court orders are not made for decorative purposes to be complied with at a party’s own convenience, no effort was made to comply within the time set, the Application is an attempt to circumvent the provisions of Order 42 Rule 14(3) of the Civil Procedure Rules, the Applicant having failed to furnish the security within the time frame ordered by the Court, the Appeal should stand dismissed since, from his past conduct, the Appellant has had no intention of complying with the order, the orders would prejudice the Respondents since it is 15 years since the Appellant dragged the Respondents to Court yet to date there is no guarantee that the Appellant will meet the costs that continue accruing in defending the claim.

Appellant’s Replying Affidavit 11. In opposition to the Application seeking to strike out the Appeal, the Appellant swore the Replying Affidavit filed on 14/06/2022. He deponed that he has already filed the Application to extend time to comply with the orders to deposit security for costs, to entertain the Application seeking to strike out the Appeal will be to defeat the essence of his Application which has an explanation for the challenges he faced in complying, the overriding objective of the civil process will be defeated if the Application for striking out is entertained since he will be denied a hearing of the Appeal on merits.

Applicant’s Supplementary Affidavit 12. The Appellant on 14/07/2022 filed a Supplementary Affidavit in support of his Application for extension of time. He deponed that the Application is not Res Judicata since the earlier Application dated 3/08/2021 never sought a similar prayer, in the Application dated 3/08/2021 he sought for Review of the order from bank cash deposit to furnishing of a bank guarantee, in the present Application, he seeks extension of time to comply with the order made on 9/03/2021. He added that dismissing the present Application will amount to driving him away from the seat of justice and denying him an opportunity to be heard.

Hearing of the Applications 13. The two Applications being related, it was directed, and agreed by the parties, that the same be heard and determined together, they be canvassed by way of written Submissions and one consolidated Ruling be delivered for both. Pursuant thereto, the Appellant filed its consolidated Submissions on 31/03/2023 while the 1st and 3rd Respondents filed theirs on 23/04/2023. The 2nd Respondent did not participate.

Appellant’s Submissions 14. Counsel for the Appellant submitted that the Orders sought by him (extension of time) spring from Order 50 Rule 6 of the Civil Procedure Rules which grants the Court discretion. He added that in considering Applications of this nature, the Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs. IEBC & 7 Others [2014] eKLR, laid down the principles that the Court should take into account when exercising its discretion.

15. Counsel submitted further that the Appellant has made a case to warrant the Court to invoke and exercise its discretion in his favour, the Appellant has laid a basis for the Application by explaining why he was unable to comply with the Court order within the prescribed timelines. He invited the Court to take judicial notice of the fact that the unprecedented COVID-19 pandemic dealt a major blow to many businesses, the Appellant’s businesses, especially his pork eatery business, was not exempted from the blows dealt by the pandemic, he was, as such, unable to raise the funds in good time to comply with the order, the Court only needs to infer from his conduct that he was willing to comply were it not for the economic hardships, from the Court record, and as conceded by the Respondents, the Appellant did indeed make an effort to satisfy the order by proposing a bank guarantee, which Application was given a cold shoulder by the Court on the grounds that the bank guarantee would expire before the Appeal was disposed of, the fact that the Appellant approached the seat of justice with an alternative mode of complying with the order suffices to infer willingness on the part of the Appellant to comply. He cited the case of Gogardhan vs Barsati AIR 1972 ALL. 246 which was cited in Johnstone Kassim Muumbo & 2 Others v Lee Funeral Services Limited [2021] eKLR.

16. Counsel further submitted that given the chronology of occurrences, the Appellant filed the Application without unreasonable delay, as has been held by the Courts, what amounts to unreasonable delay is heavily hinged on the circumstances of a case. He cited the case of Jaber Mohsen Ali & Another v Priscillah Bolt & Another [2014] eKLR and added that prior to presenting the Application, he sought for review of the order to allow him tender a bank guarantee, the Review Application was determined on 17/02/2022, the present Application was then filed but before it could be heard, the Appellant died, the personal representative of the deceased then sought a limited grant to enable his substitution, upon grant of the same, the representative filed an Application for substitution, the delay in disposing of the Application is not occasioned by the fault of the Appellant, the Respondents have not sufficiently demonstrated the prejudice or the irreparable harm that they will suffer for which costs do not suffice as atonement, the Respondents’ apprehension that the Appellant will not be able to meet the accruing costs of defending the claim is without basis.

17. Counsel also submitted that the Application is not Res Judicata to the Ruling delivered on 17/02/2022. On the essentials elements necessary for a claim of Res Judicata to succeed, he cited the case of The Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR. He submitted that the Application seeks extension of time while the Application dated 3/08/2021 sought Review of the order, the issues in the instant Application are not the same that were directly or substantially in issue in the previous Application and that the two are therefore not based on the same or similar facts.

1st and 3rd Respondents’ Submissions 18. In support of the Application to strike out or dismiss the Appeal, Counsel for the 1st and 3rd Respondents submitted that after the order to deposit security was made on 9/03/2021, the Appellant made a feeble attempt to have the order reviewed which Application was dismissed, no appeal was preferred against that Ruling, it is over 2 years since the order for deposit security was made, Order 42 Rule 14(3) of the Civil Procedure Rules expressly states that “if security for costs is not given within the time ordered the Court may dismiss the appeal”. She cited the case of James Ndirangu Nganga v Busia Dairy Farmers Co-operative Society [2014] eKLR.

19. Counsel submitted further that the Application is Res Judicata since the Appellant had previously, vide the Application dated 31/03/2021 applied to extend time within which to comply with the order of 9/03/2021, following dismissal of the Application, the Appellant cannot come again with another Application seeking the very orders. She also submitted that the Appellant had an opportunity to comply with the order but failed to do so and must therefore face the consequences of his inaction. She cited the case of Hazron Maira v Kikley Investments Limited [2020] eKLR.

20. In opposition to the Application for extension of time, Counsel reiterated that the Application is Res Judicata and cited the case of Benjamin Kipkulei v Shadrack Kamaamia & 7 others (2019) eKLR. She added that no reasonable cause has been shown to warrant enlargement of time.

Analysis & Determination 21. Upon considering the two Applications, the Record and the parties’ Submissions, I find the following to be the issues that arise for determination herein:i.Whether the Application seeking enlargement of time to deposit security for costs is Res Judicata.ii.Whether the time within which to deposit security should be enlarged.iii.Whether this Appeal should be struck out/dismissed due to the Appellant’s failure to comply with the order requiring him to deposit security for costs.

22. I now proceed to analyze and answer the issues.

i. Whether the Application seeking enlargement of time to deposit security for costs is Res Judicata 23. The Respondents’ contention is that the Application is Res Judicata for the reason that in seeking enlargement of time, the Applicant is seeking orders similar to those which he sought in his earlier Application dated 31/03/2021. Regarding Res Judicata, Section 7 of the Civil Procedure Act as follows:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them can claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

24. I have perused the record and note that in his said earlier Application dated 31/03/2021, the Appellant made the following prayers:i.That service of this Application be dispensed with in the first instance.ii.That there be a stay of proceedings/execution in this matter in respect of the order made on 9th March 2021 pending the hearing and determination of this Application.iii.That the Honourable Court be pleased to review and vary its order/Ruling made on 9th March 2021 to the extent of requiring the Appellant to deposit Kshs. 473,931 into a joint interest earning account in the names of the Advocates for the parties and substitute thereto an order for the Appellant to tender a bank guarantee for the said sum.iv.That the period for compliance with the order on review be extended.v.That the costs of the Application be provided for.

25. Clearly therefore at prayer No. 4, the Application dated 31/03/2021, similar to the present Application, sought for extension of time to comply with the order to deposit security. In confirming this position, in his Ruling of 17/02/2022, Nyakundi J stated as follows:“What is before this court is a Notice of motion expressed to be brought under Order 51 Rule 14(1)(c) of the Civil Procedure Rules. The applicant seeks orders that the court be pleased to review or vary its order made on 9th March 2021 to the extent of requiring the appellant to deposit kshs. 473,931/- and substitute it with an order for the appellant to tender a bank guarantee for the said sum. The applicant also seeks orders that the period of compliance with the order on review be extended.”

26. In Uhuru Highway Development Limited v Central Bank of Kenya & 2 others [1996] eKLR, the Court of Appeal stated as follows:“………., there must be an end to applications of similar nature; that is to say further, wider principles of res judicata apply to applications within the suit. If that was not the intention, we can imagine that the courts could and would be inundated by new applications filed after the original one was dismissed. There must be an end to interlocutory applications as much as there ought to be an end to litigation. It is this precise problem that section 89 of our Civil Procedure Act caters for.”

27. Further, Kuloba J, in the case of Njangu vs Wambugu and another Nairobi HCCC No. 2340 of 1991 (unreported), held as follows:‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata …..”

28. Applying the above principles to the facts of this case, it is evident that the matter in issue being extension/enlargement of time to comply, the same prayer was made and canvassed before Nyakundi J and the same was fully and finally determined on merits vide the Ruling delivered on 17/02/2022. It is not in contention that the parties were the same. It is therefore my finding that the Application dated 27/05/2022 is Res Judicata.

ii. Whether the time within which to deposit security should be enlarged 29. Having found that the Application dated 27/05/2022 is Res Judicata, there is now little benefit in considering whether time should be enlarged. Nevertheless, for completeness of the record, I will still consider and determine this question on its merits.

30. The order to deposit security was given 9/03/2021 and the Application seeking extension of time was filed on 30/05/2022 It is therefore not lost on this Court that the Application was filed more than 1 year after the order was given. This, on the face of it, is an elongated delay.

31. I note that after the order to deposit security was given on 9/03/2021, the Appellant filed the Application for Review on 31/03/2021 and the same was dismissed on 17/02/2022. The present Application was then filed on 27/05/2022, more than 3 months after the Application for Review was dismissed. In light of absence of a convincing explanation and considering the implication of what was at stake in the event of non-compliance, namely, striking out or dismissal of the Appeal, again, I find this to have amounted to an inordinate delay.

32. However, in determining Applications for extension of time, apart from length of the delay, the Court is also required to take into account several other factors, including conduct of the parties. In regard thereto, in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, the Supreme Court set out the relevant factors to be considered as follows:“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 for 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. Whether there is a reasonable reason 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; and7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

33. Further, in Edith Gichungu Koine vs Stephen Njagi Thoithi [2014] eKLR, Odek JJA guided the Courts on such relevant factors as follows:“Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this court including, but no 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.”

34. I also note that in his said Ruling delivered on 17/02/2022, Nyakundi J, while determining the Appellant’s earlier Application for Review as set out above, observed as follows:“The issue of the applicants’ medical condition has been within his knowledge all along and therefore does not present new information which was not within his knowledge. He has not proven that there was a mistake or apparent error on the face of the record.………………………………………………………………..The orders the applicant seeks to review against were given on 3rd March 2021. The application was filed on 31st March 2021, 28 days after the orders were given. The orders were to be complied with within 30 days. The applicant has not explained why there was this delay. I find the period he waited to file the application mischievously convenient and therefore consider the delay unreasonable.”

35. From the above observations, it is clear that in respect to the Appellant’s failure to comply with the orders requiring deposit of security, he has already been found to have been in inordinate delay and his conduct towards the same has also been faulted. The said findings were made in this very suit by a Judge of this very Court. Considering this matter in totality therefore, it is my considered view that the reasons given by the Appellant do not establish a satisfactory explanation for the failure to comply with the orders. Mere invocation of the COVID pandemic as an excuse, without clear demonstration of how exactly the same affected the Appellant’s ability to comply or to move the Court in good time, is not sufficient in Applications of this nature. Instead of complying with the order, the Appellant has been spending too much precious time filing unwarranted Applications and elongating litigation at the expense of the Respondents. The excuse that the Appellant’s death contributed to the delay is obviously far-fetched since the Appellant passed away on 22/09/2022, 5 months after the Application for extension had already been filed. In the premises, I decline the invitation to extend the time within which to deposit security for costs.

iii. Whether this Appeal should be struck out/dismissed due to the Appellant’s failure to comply with the order requiring him to deposit security for costs 36. Order 42 Rule 14(1) of the Civil Procedure Rules provides as follows:“(1)At any time after the Memorandum of Appeal has been served the court, in its discretion, may order the appellant to give security for the whole or any part of the costs of such Appeal.(2)If the appellant is not ordinarily resident in Kenya and has no sufficient property in Kenya (other than property to which the Appeal relates) the court shall order the giving of security for the whole or part of the costs of the Appeal within a time to be limited in the order.”(3)If security for costs is not given within the time ordered the court may dismiss the Appeal.

37. The 30 days period within which the Appellant was on 9/03/2021 directed to deposit security for costs having long lapsed, and this Court having now declined to extend the time to do so, can this Appeal be salvaged?

38. My understanding of the order of 9/03/2021 is that this Appeal would not be “admitted” and would not therefore remain valid and/or competent on record only unless the Appellant complied with the order to deposit security. That order, having not been set aside and the Court on 17/02/2022 having declined to review or vary it, the same remains a lawful order. In the circumstances, this Court’s hands are tied and must abide by the order. The order not having been complied with to date, the only result that can ensue is that the Appeal is not validly on record. The same cannot therefore survive and neither can it be salvaged.

Final Orders 39. In the premises, I issue the following orders:i.The Appellant’s Application dated 27/05/2023 seeking extension of time to deposit security for costs is dismissed with costs to the 1st & 3rd Respondents.ii.The 1st and 3rd Respondents’ Application dated 27/06/2023 seeking that the Appeal be struck out for failure to deposit security for costs is hereby allowed with costs.iii.Accordingly, this Appeal is hereby dismissed with costs to the 1st and 3rd Respondents.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 3RD DAY OF NOVEMBER 2023WANANDA J. R. ANURO.............................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR