[2022] KEHC 17258 (KLR)

Kamau v Lusweti (Miscellaneous Application E057 of 2021) [2022] KEHC 17258 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 17258 (KLR)

Republic of Kenya

In the High Court at Kajiado

Miscellaneous Application E057 of 2021

SN Mutuku, J

December 1, 2022

Between

James Ndagwatha Kamau

Applicant

and

Thomas Nyongesa Lusweti

Respondent

Ruling

1. The Applicant brought this application through a Notice of Motion dated November 1, 2021 under Order 22 Rule 22, Order 42 Rules 6, Order 43, Order 51 Rules 1 and 3 of theCivil Procedure Rules, Section 3 and 3A of the Civil Procedure Act seeking the following orders that:i.Spent.ii.That this Honourable Court be pleased to grant ex-parte interim stay of execution of the judgement delivered by Honourable Resident Magistrate’s court at Kajiado - CMCC No 168 of 2017, delivered on July 29, 2019 by the Honourable Resident Magistrate Edwin Mulochi (RM), pending the hearing and determination of this application.iii.That this Honourable Court be pleased to grant the Applicant/Intended Appellant leave to appeal out of time the judgment delivered by Honourable Resident Magistrate’s court at Kajiado- CMCC No 168 of 2017, delivered on July 29, 2019 by the Honourable Resident Magistrate Edwin Mulochi (RM).iv.That the Applicant/Intended Appellant has thoroughly perused the said Judgement and is dissatisfied with the trial magistrate’s decision on liability where the defendants were held 100% liable and plaintiff awarded Kshs 250,000 for General damages, Kshs 3,550 for special damages plus cost and interest.v.That this Honourable Court allow the Applicant/Intended Appellant to furnish the court with security in the form of a Bank Guarantee from the DTB Bank.vi.That the Application be heard inter partes on such a date and time as this Honourable Court may direct.vii.That the costs of this Application to abide the outcome of the appeal.viii.That this Honourable Court be pleased to issue any other order and/or direction it deems fit to grant in the circumstances.

2. The application is supported by an Affidavit sworn by Anerita Salinder Gulenywa, an advocate of the High Court of Kenya with the firm of Kimondo Gachoka & Company Advocates on behalf of the Applicant.

3. She has deposed that the delay in filing the appeal within time was occasioned by the file missing from the registry; that this issue was followed up and a request made to reconstruct a skeleton file by writing letters dated September 27, 2019 and August 3, 2021 in that respect and that several trips were made to the registry in an attempt to get a copy of the judgement to no avail.

4. She further deposed that the appeal has a high chance of success and that the applicant is apprehensive that the respondent may procced to execute the judgment; that the judgment is of a substantial amount and that the Respondent may be unable to furnish the same if the appeal succeeds. She states that unless the application is heard, and stay of execution granted, the Appellant will suffer irreparable loss and damage.

5. The Application was opposed by the Respondents who filed Grounds of Opposition as follows:i.That the present application is an abuse of the court process.ii.That the application is an afterthought and is lacking in substance, unnecessary, vexatious and frivolous.iii.That the application as drawn is totally defective and unattainable.iv.That the Application is only meant to deny the Respondents the fruits of his judgement.

Submissions 6. The matter proceeded by way of written submissions. The Applicant filed his submissions on August 18, 2022. He submitted that the ends of justice in this case demand that a genuine, viable and merited appeal such as the one intended herein should be heard and determined. He relied on the case of Wachira Karani vs Bildad Wachira(2016) eKLR, to emphasize the point the fundamental duty of the court to do justice between the parties and allow parties proper opportunity to put their cases upon merits of the matter.

7. The Applicant submitted that section 95 of the Civil Procedure Act lays out the substantive law that grants the court power to enlarge timeband asked the court to exercise its powers under the law and allow their application.

8. He further submitted that the appeal is an arguable one and that the draft memorandum of appeal raises issues of wrong principles being applied in assessing damages at Kshs. 250,000/- and liability at 100% and therefore the appeal raises serious points of law and fact.

9. He submitted that sufficient cause is established when the Applicant demonstrates substantial loss that may result to the applicant; unreasonable delay and furnishing of security; that on substantial loss, it is his submission that he is apprehensive that the Respondent may proceed and execute the judgment by attaching tye Applicant’s property thereby causing the Applicant loss and rendering the appeal nugatory. He submitted that there was no unreasonable delay in filling the application and that he is willing to furnish security in the form of a Bank Guarantee.

10. The Respondent filed his submissions on August 19, 2022. He has submitted, through his counsel, that the application is an abuse of court process with the sole purpose of denying him the fruits of the judgement; that though the Applicant claims that the reason for the delay in filing the appeal was occasioned by the missing file, he was in court when the judgment was delivered and sought stay of execution of 45 days which was granted; that the Respondent’s counsel wrote a letter dated July 30, 2019 calling for the funds and that the same was received by the Applicant’s advocate on the same day and that they would have preferred an appeal then. He submitted that the appeal is a clear abuse of court process.

11. The Respondent relied on the case of Kivanga Estates Limited vs National Bank of Kenya Limited [2017] eKLR where the court stated that:“There is no greater duty for the court than to ensure that it maintains the integrity of the system of administration of justice and ensure that justice is not only done but is seen to be done by, amongst other measures, stopping litigations brought for ulterior and extraneous considerations.”

12. He submitted that the application is defective and unattainable and that the Applicant has failed to put in the Memorandum of Appeal and seek the same to be admitted as properly on record. He relied on Caddel Construction Company Limited vs Elias Maina Kariuki [2021] eKLR where the court stated that “the court shall not belabour the point, it being clear that the Applicant has approached court without first filing the intended appeal out of time.”

13. He submitted, further, that the Applicant has not adduced any evidence to show that the intended appeal has high chances of success to warrant stay of execution and citedChris Munga N Bichage -vs- Nyagaka Tongi & 2 others [2013] eKLR, where it was held that:“The law as regards applications for stay of execution, stay of proceedings or injunction is now well settled. The applicant who would succeed upon such an application must persuade the court on two limbs, which are first, that his appeal or intended appeal is arguable, that is to say it is not frivolous. Secondly, that if the application is not granted, the success of the appeal, were it to succeed, would be rendered nugatory. These two limbs must both be demonstrated and it would not be enough that only one is demonstrated.”

Determination 14. I have perused the application, the affidavits and the submissions by both parties. The law governing stay of execution of judgment is Order 22 rule 22 which provides that:(1)The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay the execution, or for any other order relating to the decree or execution which might have been made by the court of first instance, or appellate court if execution has been issued thereby, or if application for execution has been made thereto.(2)Where the property or person of the judgment-debtor has been seized under an execution, the court which issued the execution may order the restitution of such property or the discharge of such person pending the results of the application.

15. Further, Order 42 Rule 6 provides that:(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.(2)No order for stay of execution shall be made under subrule (1) unless—SUBPARA (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; andSUBPARA (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.

16. The essentials of granting stay pending appeal are clearly outlined in the Civil Procedure Rules as shown above. The Applicant has submitted that they are apprehensive that if stay is not granted the Respondent is likely to execute and attach the Applicant’s property. That the same would render the intended appeal nugatory and cause them substantial loss. They further argued that the applicant may not recover the amount if the appeal succeeds as the Respondent has not shown that he would be able to refund the same.

17. I have considered this argument. I note inNational Industrial Credit Bank Ltd V Aquinas Francis Wasike and Another (2006) eKLR the Court of Appeal stated that:“This court has said before and it would bear repeating that while the legal duty is on an Applicant to prove the allegation that an appeal would be rendered nugatory because a Respondent would be unable to pay back the decretal sum, it is unreasonable to expect such Applicant to know in detail the resources owned by a Respondent or the lack of them. Once an Applicant expresses a reasonable fear that a Respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the Respondent to show what resources he has since that is a matter which is peculiarly within his knowledge”.

18. With this reasoning in mind, it is my view that the evidential burden shifted to the Respondent upon the allegations made by the Applicant that the Respondent will not be able to pay back the decretal amount should the appeal succeed to demonstrate that he is in a position to pay back that money. The Respondent has not done so.

19. The Applicant has argued that the application was filed without undue delay. In my view however I tend to differ as the application was filed on November 10, 2021 while the judgement was delivered on July 29, 2019 which is 2 years after the judgement was delivered. The Applicant has however given explanation on this issue while submitting on the issue of leave to file an appeal out of time. I have no reason to doubt that the file was not available for the Applicant to take the appropriate action.

20. On the issue of security, the applicant has requested that this court do allow them to present a Bank guarantee as sufficient security. Order 42 rule 6 (2b) states that, “such security as the court orders for the due performance of such decree’’.

21. I have considered the grounds advanced in support of the prayer seeking leave to file the appeal out of time. InNicholas Kiptoo Korir arap Salat v IEBC and 7 Others [2014] eKLR, Supreme Court of Kenya laid down the applicable principles in an application for leave to appeal out of time as follows:“The underlying principles a court should consider in exercise of such discretion include:1. Extension of time is not a right of any 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 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 Respondent if the extension is granted;6. Whether the application has been brought without undue delay.

22. In this case Judgment was delivered on July 29, 2019 by the lower court. The Applicant is seeking leave for extension of time almost 2 years after the fact. In his submissions he has offered the explanation that led to the delay by stating that the delay was occasioned by the missing of the lower court file and that they wrote a letter dated September 27, 2019 and made several visits to the registry to follow up on the same; that they filed an application for reconstruction of the file on October 9, 2020 and continued to follow up on the issue by writing a letter to the Executive Officer on August 31, 2021 and that finally the Registry furnished them with the judgment on October 7, 2021. To proof the same the applicant has annexed the application and the letters in support of their case.

23. I have considered Respondent’s submissions that the application is an abuse of court process; that the Applicant has failed to put in the Memorandum of Appeal and seek the same to be admitted as properly on record and that as a result the application is defective and unattainable. However, guided by Nicholas Kiptoo Korir arap Salat case, it is clear to me, on taking into account the principles in that case, that the Applicant has demonstrated the reason for the delay and has shown the steps he took in trying to find the missing file. In my view this delay was reasonable and the explanation offered is sufficient to persuade of the efforts the Applicant employed to trace the file and prepare the appeal.

24. It is my considered view that the Applicant deserves an opportunity to file the appeal. For this reason, I will and do hereby allow the Notice of Motion dated November 1, 2021 in the following terms:i.Stay of execution of the judgment delivered on July 29, 2019 is hereby granted pending the hearing and determination of the intended appeal.ii.Leave is hereby granted to the Applicant to file the appeal against the judgment of the lower court in CMCC No 168 of 2017 out of time.iii.That the Applicant shall provide security in the decretal amount which shall be deposited within 45 days in a joint interest earning account held by firm of advocates representing each party.iv.That the Applicant shall prepare, file and serve Record of Appeal within 60 days from the date of this ruling.v.This matter shall be mentioned on January 17, 2023 to confirm compliance and give further directions.

25. Orders shall issue accordingly.

Dated, signed and delivered this 1stday of December, 2022. S N MUTUKUJUDGE3| Ruling in Kajiado HCC Misc Application No E057 of 2021