[2022] KEHC 11565 (KLR)

Kanyori v Eringo (Miscellaneous Civil Application E011 of 2022) [2022] KEHC 11565 (KLR) (Civ) (18 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11565 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E011 of 2022

DO Chepkwony, J

July 18, 2022

Between

Ann Wanjiku Kanyori

Applicant

and

Elijah Mukiira Eringo

Respondent

Ruling

1. This is a Ruling with respect to a Notice of Motion application dated 14th January, 2022 which seeks for orders that:a.Spent;b.Spent;c.That ex-parte and pending the hearing and determination of the intended appeal this Honourable Court be pleased to stay the entire Judgment and consequential orders of the Hon. Martin N. Mutua (Mr.) in Civil Suit S.C.C No. 310 of 2021 dated the 22nd October 2021;d.That this Honourable Court be pleased to grant the Applicants leave to appeal out of time against the entire Judgment and consequential orders of the Hon. Martin N. Mutua (Mr.) in Civil Suit S.C.C No. 310 of 2021 dated the 22nd October 2021. e.That this Honourable Court be pleased to allow the annexed draft memorandum of Appeal to be deemed as being properly filed upon the assessment and the payment of the requisite fees within the time this court deems appropriate;f.Costs be provided for.

2. That application is based on sixteen (16) grounds on its face and further deposed in the Supporting Affidavit sworn by Ann Wanjiku Kanyori, the Applicant, on 17th January, 2022.

3. The Applicant’s case is that the said Judgment was delivered without her notice hence the delay in lodging the appeal. She blames her former advocate for failing to update her about the case especially the delivery of the Judgment and states that the last time she heard from her erstwhile advocates was on 23rd September, 2021 when informing her that the Judgment had been scheduled for 30th September 2021. That on 30th September 2021, she inquired from the former advocate on the progress of her case and he informed her that the Judgment was not ready, but that the court had directed that the same would be delivered on notice. Since then, she was not notified of the delivery of the Judgment either by the court or her former advocates until on 20th December, 2021 when she was served with a proclamation Notice on her goods. On the same date, her then advocate called to notify her of the delivery of the Judgment and by that time the period for lodging an appeal against the Judgment had lapsed.

4. The Applicant added that she is aggrieved by the Judgment of the trial court and her intended appeal raises arguable grounds which may be rendered nugatory if the orders sought are not granted. The Applicant has also flaunted the trial court for failing to consider her counter claim which she believes ought to have been an offset against any award made in favour of the Respondent.

5. The Respondent opposed the application through the Grounds of Opposition dated 15th February, 2022. The grounds challenge this courts jurisdiction to adjudicate on an appeal based on matters of facts which according to the Respondent is in contravention to Section 38(1) of the Small Claims Court Act. It is averred that the said Section only limits appeal from the Small Courts to the High Court on matters of law only. Further, that the Applicant had 30 days within which to seek for review, stay or appeal against the lower court’s Judgment and such time frame cannot be enlarged without meritorious grounds which the Applicant has failed to adduce. The Respondent adds that the Applicant had filed a similar application before the trial court which had been dismissed. Finally, it is averred that by refusing and failing to pay the decretal sum, is approaching this court with unclean hands and does not deserve equity hence the application should be dismissed for want of merit.

6. By consent of the parties, the application was canvassed by way of written submissions and as the record reflects, the Applicants submissions are dated 25th March, 2022 whilst those of the Respondent are dated 30th March, 2022. I have read through the said submissions and find that they replicate the grounds summarized above, thus I wish not to repeat the same here.

Analysis and Determination 7. I have considered the said application, the affidavit sworn in support thereof, the grounds of opposition and the submissions filed by the Respondent as well as the cited law. The key issues for determination are:-a.Whether the Application has any merit regarding the prayer for leave to appeal out of the statutory stipulated period; andb.Secondly whether the prayer for stay of execution of decree of the trial court pending the hearing and determination of the intended appeal is merited.

8. Firstly, I wish to address a preliminary issue that has been raised by the Respondent with respect to this court’s jurisdiction in dealing with the present Appeal by dint of Section 38 of the Small Courts Claims Act No.2 of 2016. Section 38 of the Small Courts Claims Act reads as follows:-[38]A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.

9. The Respondent asserts that the aforesaid Section precludes one from appealing on matter of facts and limits the appeals to court on matters of laws. I find that the said Section cannot be read in isolation, but that the court ought to adopt a holistic interpretation of the same within its spirit. This can only be achieved if the above section is read alongside the Small Claims Code Of Conduct For Adjudicators, 2019 especially Rule 38 which provides that the appeals from the small claims court to the High Court just like the counter parts appeals from the magistrates court, shall be done in accordance with Order 42 ofThe Civil Procedure Rules, 2010.

10. Under Order 42, The High court being the first appellate court exercises a duty to re-evaluate, re-analyze and re-consider the evidence as presented before the trial court and draw its own conclusions. The appeals from the small claims court are not an exception thereto. It would be against this court’s character and mandate to shut an appellant from exercising the precious right of appeal simply because the appeal raises issues of fact. Nonetheless, the memorandum of appeal annexed to the present application is a hybrid raising issues of both facts and law. For that reason, I overrule the challenge on this court’s jurisdiction to handle the appeal and find the court has the requisite jurisdiction to deal with the current appeal.

11. I now turn to consider the merit of the application. The Respondent only filed Grounds of Opposition to the application and in my view, the grounds of opposition only address issues of law and no more. They are merely averments and in no way do they respond to the issues raised by the application in its supporting affidavit. Thus, what was deponed was not entered nor rebutted by the Respondent and must be taken to be true. In the absence of the Replying Affidavit, whereby the Respondent would be rebutting the averments in the Applicant’s supporting affidavit, only means that the Respondent has no claim or rebuttal against the Applicant’s claim.

12. With regard to the prayer for extension of time for filing the appeal, I find that Section 79G of the Civil Procedure Act provides on the statutory period for filing an appeal from the Judgment or decree of a subordinate court to the High Court. It reads as follows:-“79G. 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.Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

13. The conditions set out under Section 79G and which should be considered in deciding whether or not to grant extension of time to file an appeal are; the length of the delay, the reason for the delay, possibly, the chances of success of the appeal if the application is granted, and finally, the degree of prejudice to the Respondent if the application is granted. I will consider the above out-lined conditions alongside the facts in the present application will be considered in the determination of whether or not to grant the orders sought. (Also see also the court of appeal decision in the case of Thuita Mwangi –vs- Kenya Airways Ltd [2003] eKLR).

14. It is a common ground that the Judgment which the Applicant seeks to appeal against was delivered on 22nd October, 2021 while the instant application was filed in January, 2022 which is beyond the thirty (30) days stipulated under Section 79G (above) by a period of about a month or so. The Applicant blames her erstwhile advocate for failing to inform her about the delivery of the Judgment on time. She has explained that the Judgment was first scheduled to be delivered on 30th September 2021 and when she inquired of the progress on that date, she was informed that the court had directed that the Judgment would be delivered on notice. She never received the notice for delivery of the Judgment until on 20th December 2021 when she was prompted by a proclamation Notice on her assets. The above facts have not been rebutted by the Respondent, hence this court adopts them as the gospel truth.

15. Although the Respondent has submitted that the Applicant’s advocate was present when a notice on the Judgment was issued, it is not denied that the court had directed that a notice would be sent to the parties with regard to when the Judgment would be delivered contrary to what the Respondent intimates, that such notice was issued in presence of both advocates. And even if it is alleged that the Applicant’s advocate received the notice, it is not denied that the same was not communicated to the Applicant and it would be contrary to rules justice to punish a litigant for mistakes of a counsel. The explanation tendered by the Applicant is thus sufficient in view of the one month’s delay exhibited in filing the present application. This court is therefore persuaded to exercise itsy discretion under Section 79G of the Civil Procedure Act in favour of the Applicant.

16. As for whether the intended appeal is or is not arguable, it is my view that the Appellants only have the onus to prove the arguability of the appeal as opposed to persuading the court that the intended appeal has high probability of success. A demonstration that the Appellants have plausible and conceivably persuasive grounds of either facts or law to overturn the original verdict is thus sufficient. Now a perusal of the draft Memorandum of Appeal annexed on the application flaunts the trial court for failing to apply the principal for set off. I find that this is an arguable ground of appeal, and thus the Applicant has discharged this burden.

17. Lastly, the Respondent has not stated the prejudice he would suffer if the Applicant is allowed to exercise the cherished right of appeal. In view of this, this court sees none. In the end, the Applicant be and is hereby at liberty to grant leave to the Appellants to file the Intended Appeal out of time.

18. The other prayer is whether an order for stay of execution pending the determination of the intended appeal can issue, Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 stipulates the conditions in which a stay of execution may be granted. It provides that an Applicant in an application for stay must satisfy the court that he/she stands to suffer substantial loss if stay is not granted, that the application had been filed without unreasonable delay and that the Applicant is willing to offer such security as may be ordered by the court.

19. In this case, the Applicant submitted that unless stay is granted, the Respondent may proceed with execution and render the intended appeal nugatory. The Respondent on the other hand states that he was not persuaded that there were grounds adduced to show the prejudice that the Applicant may suffer in the event a stay of execution of the proclaimed goods is not granted, more so in vernacular!

20. Also, the fact that the process of execution is likely to be put in motion does not by itself amount to substantial loss and that averment by the Appellant is merely based on speculations. I am therefore not persuaded that the Applicant has sufficiently established the likely to suffer substantial loss.

21. With respect to willingness to offer any security, the Applicant has been silent all through in the affidavit she in her submissions. The Respondent has also not commented on the same and this court is thus left to decide the case on balance of convenience As stated earlier, this court has not seen prejudice beyond the monetary compensation which the Respondent may suffer if the Appellant is allowed to exercise her cherished right of appeal without the fear of facing execution. Her right to appeal and the Respondent’s right to enjoy the fruits of a successful Judgment, can be balanced if the court orders for provision of security equivalent to the amounts in the decree or as awarded in the Judgment.

22. The upshot of this is that the Applicant’s Notice of Motion application dated 14th January, 2022 be and is hereby allowed in the terms presented;a.That the period for which the intended appeal is to be lodged is hereby extended by further thirty (30) days from the date hereof. The Memorandum of Appeal as well as the Record of Appeal to be filed within that time frame.b.That pending the hearing and determination of the intended appeal, there shall be stay of execution of the Judgment and consequential orders of the Hon. Martin N. Mutua (Mr.) in Civil Suit S.C.C No.310 of 2021 dated the 22nd October 2021 on condition that the Applicant deposit the sum of Kshs.660,000/= awarded in the Judgment in an escrow interest earning account in the joint names of the counsels on record for Applicant and the Respondent. The amount be deposited within thirty (30) days from the date hereof.c.Failure to comply with order (b) above and the timelines thereof, the stay order hereby granted shall automatically stand discharged and the Respondent shall be at liberty to execute.d.Costs of the application shall be in cause of the intended appeal.It is hereby so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF JULY 2022. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Kinyara for ApplicantMr. Nyagah holding brief for Mr. Karauke for RespondentCourt Assistant - Kevin