[2022] KEHC 13959 (KLR)

Kamau & another v Vwononi (Civil Appeal E666 of 2021) [2022] KEHC 13959 (KLR) (Civ) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13959 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E666 of 2021

CW Meoli, J

October 13, 2022

Between

John Githinji Kamau

1st Applicant

Wilma & Sons Company Limited

2nd Applicant

and

Caroline Akaranga Vwononi

Respondent

Ruling

1. For determination is the motion dated October 25, 2021 by John Githinji Kamau and Wilma & Sons Company Limited (hereafter the 1st & 2nd applicant/applicants) seeking inter alia to stay proceedings in Nairobi Milimani CMCC No 3399 of 2020 pending the hearing and determination of the applicants’ intended appeal; that the court be pleased to set aside the proceedings of September 8, 2021 in Nairobi Milimani CMCC No 3399 of 2020 denying the applicants’ counsel audience, closing the defence case and all others consequential orders thereto; and that the court be pleased to re-open the case and the applicants be allowed to cross-examine Caroline Akaranga Vwononi (hereafter the respondent) her witnesses and thereafter to call their witness. The motion is expressed to be brought inter alia under section 1A 1B, 3, 3A & 75 of the Civil Procedure Act (CPA), order 42 rule 6, order 43 and order 51 rule 1 of the Civil Procedure Rules (CPR).

2. The grounds on the face of the motion are amplified in the supporting affidavits sworn by Peris Gichohi, counsel on record for the applicants. The gist of her affidavit is that during the proceedings, the lower court had assessed court adjournment fees at Kshs 26,200/- and ordered the applicants to settle the same; that she embarked on getting the applicants’ insurer to pay up, but September 8, 2021 when the matter came up in court for hearing, the adjournment fees was yet to be paid although she was ready to proceed with the hearing to completion and hence sought the court’s indulgence to proceed with the hearing pending payment of adjournment fees before the conclusion of matter.

3. That the trial court declined her request and proceeded to deny her audience and on its own motion declaring closed the applicant’s and proceeding to set a mention date for purposes of filing submissions and granting leave to the applicants to appeal the said order. counsel deposes the intended appeal is meritorious with a high chance of success and that the applicants risk being condemned unheard contrary to the rules of natural justice whereas mistakes of counsel should not be visited on the innocent litigant.

4. The respondent opposes the motion by way of replying affidavit dated December 21, 2021. She ideally confirms the events leading to the instant intended appeal and that the applicants having been previously ordered to settled adjournment fees to the tune of Kshs 26,200/- had neither settled the same nor given reasonable explanation for default. She deposed that the trial court at all material times in a bid to ensure the applicants were heard acceded to counsel’s request for adjournment including granting them time to comply, but they had persisted in default. She concludes by asserting that the motion lacks merit and ought to be dismissed with costs.

5. The motion was canvassed by way of written submissions. Counsel for the applicants anchored his submissions on the provisions of article 48 & 50 of the Constitution of Kenya to contend that the applicants’ rights to access to justice and fair hearing are threatened. And citing Joseph Njoroge Kimondo & Another v (A minor suing through her next friend and father JWM) [2018] eKLRcounsel contended that the crux of the matter is whether the applicants were accorded or denied an opportunity to adduce evidence pursuant to the subject order of the lower court. She contended that the applicants were denied the opportunity to be heard on account of non-compliance with the order for payment of adjournment fees and urged the court to allow the motion as prayed.

6. The respondent cited several decisions including Nicholas Kiptoo Korir Salat v Independent Electoral and Boundaries Commission & 6 Others [2013] eKLR, and Mbogo v Shah (1968) EA 93 to submit that the applicants did not provide any reasonable explanation for their failure to comply with the lower court orders their motion ought to be dismissed.

7. The court has considered the affidavit material and submissions canvassed in respect of the motion. The parties by their respective affidavit material and submissions have delved into issues that ought to be canvassed at the hearing of the appeal, rather at this interlocutory stage. Further the order sought by the applicants 'that the court be pleased to set aside the proceedings of September 8, 2021 in Nairobi Milimani CMCC No 3399 of 2020' and that the said case be re-opened, inter alia, calls for the premature determination of the appeal, and does not lie at this interlocutory stage. The Court of Appeal inJames Ndungu Gethenji & 3 others v Gitahi Gethenji & 3 others [2018] eKLR while addressing itself to the purpose of interlocutory application stated;-'Being an interlocutory application, we must consider only issues that do not compromise or prejudice the hearing and determination of the suit pending before the High Court. This court in Pattni vs Ali & 2 Others CA No 354 OF 2004 (UR183/04), stated that in interlocutory applications, the orders that are sought should not decide the rights and obligations of the parties but are merely meant to keep matters in status quo pending such determination.'

8. That said, in my considered view, the matter turns on a legal point not canvassed or addressed by the parties. From the affidavit material presented before the court, the appeal herein relates to an order issued by the lower court in Nairobi Milimani CMCC No 3399 of 2020 on September 8, 2021 when the matter came up for hearing and the applicants were denied audience, on account of having failed to comply with the court orders on payment of adjournment fees. They complain that they were condemned unheard and therefore seek to stay proceedings before the lower court pending determination of the appeal and or intended appeal.

9. The power of the court to stay proceedings pending appeal, which constitutes the live prayer in the instant motion is donated by order 42 rule 6 (1) of the Civil Procedure Rules. The court may also make orders to stay proceedings where the ends of justice so require, under section 3A of the Civil Procedure Act, also invoked by the Applicants. The former provision is in the following terms:'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.'

10. InRe Global Tours & Travel Ltd Nairobi HCCC No 43 of 2000 (UR)Ringera, J (as he then was) spelt out the applicable considerations in determining an application for stay of proceedings pending appeal as follows:'As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice, the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.'See also Christopher Ndolo Mutuku and Anor V CFC Stanbic Bank Limited (2015) eKLR; and Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi (2014) e KLR.

11. The need to avoid unnecessary proliferation of proceedings which needlessly dissipate the court’s limited time resource is a key consideration in an application of this nature, as is the consideration whether the appeal will be rendered nugatory if the subject proceedings are not stayed. As observed by Onyango Otieno, J (as he then was) Niazsons (Kenya) Ltd v China Road & Bridge Corporation (Kenya) Ltd Nairobi HCCC No 126 of 1999:'Where the appeal may have very serious effects on the entire case so that if stay of proceedings is not granted the result of the appeal may well render the orders made nugatory and render the exercise futile, stay (stay of proceedings) should be granted.'

12. The Court of Appeal in Wachira Waruru & Anor v Francis Oyatsi [2002] 2 EA 664 held that:'In an application for stay of proceedings pending appeal where the judgement is entered in an application for striking out a defence, it cannot be gainsaid that unless a stay is granted the appeal will be rendered nugatory since if the process of assessing damages goes on and the appeal is allowed that process would be an exercise in futility.'

13. It would seem from the foregoing therefore that the invocation of the jurisdiction of this court under order 42 rule 6 (1) or 6 (6) of the Civil Procedure Rules must be preceded by the filing of an appeal, or compliance with the procedure for filing an appeal, in this case a memorandum of appeal (see order 42 rule 1 of the Civil Procedure Rules) and by extension a competent memorandum of appeal. Until a competent memorandum of appeal is filed, the court may be acting in vacuo by considering the applicant’s prayer for stay of execution pending a non-existent appeal. The Court of Appeal in Abubaker Mohamed Al-Amin v Firdaus Siwa Somo [2018] eKLR while citing with approval the decision of the High Court in Rosalindi Wanjiku Macharia vs James Kiingati Kimani (Suing as the legal representative of the Estate of Martin Muiruri (deceased)) [2017] eKLR concurred and adopted the foregoing reasoning.

14. Earlier, the Court of Appeal in the case ofEquity Bank -Vs- Westlink MBO Limited [2013] eKLR while commenting on rule 5 (2) (b) of the Court of Appeal Rules, whose wording is substantially similar to order 42 rule 6 (1) of the Civil Procedure Rules, and on order 42 rule 6 (6) of Civil Procedure Rules, left no room for doubt that an application for stay of execution pending appeal could only be entertained before it after the filing of an appeal or a notice of intended appeal. (See also Balozi Housing Co-operative Society Limited -Vs- Captain Francis EK Hinga [2012] eKLR). Order 42 rule 1 of the Civil Procedure Rules provides:'(1)Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.(2)The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.'

15. The order which is the subject of the supposed appeal was issued on September 8, 2021. It appears that the applicants immediately obtained leave to appeal the said order. Section 79G of the Civil Procedure Act provides that:'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.'

16. As such, the applicants’ appeal ought to have been filed on or before October 9, 2021. The memorandum of appeal was filed on October 18, 2021, some nine (9) days, after the prescribed time within which the appeal ought to have been filed. The circumstances in which the impugned order was given on October 8, 2021 would fall under order 17 of the Civil Procedure Rules and the leave to appeal immediately granted by the lower court related to the right of appeal under order 43 of the Civil Procedure Rules, and not the extension of the timelines for appeal. In their present motion, the applicants have not sought the admission of their appeal out of time under section 79G of the Civil Procedure Act. Consequently, the applicants have invoked this court’s judicial discretion based on a patently incompetent appeal. In other words, the appellate jurisdiction of this court has not been properly invoked.

17. There being no competent appeal filed in respect of the order issued on September 8, 2021 there can be no basis upon which this court could exercise its appellate jurisdiction as prayed in the motion. This court has on occasion observed that the phrase 'an appeal may be admitted out of time' in section 79G, appears to admit both retrospective and prospective application. So that leave under the section may be sought before or after a memorandum of appeal is filed. As such since the applicants express intent was to seek an order to stay proceedings pending appeal, they ought to have included in their motion a prayer for the late admission of their appeal. In the circumstances, the applicants’ motion is struck out with costs.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 13TH DAY OF OCTOBER 2022. C MEOLIJUDGEIn the presence of:For the Applicants: Mr NdumburaFor the Respondent: Mr KahuthuC/A: Carol