[2022] KEHC 11689 (KLR)

Kenya Medical Research Institute v Superclean Shine Limited & 2 others (Judicial Review Miscellaneous Application 215 of 2018) [2022] KEHC 11689 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11689 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review Miscellaneous Application 215 of 2018

AK Ndung'u, J

May 19, 2022

Between

Kenya Medical Research Institute

Applicant

and

Superclean Shine Limited

1st Respondent

Milimani Commercial Courts

2nd Respondent

The Hon. Attorney General

3rd Respondent

Ruling

Introduction 1. The applicant moved this court vide a notice of motion application dated September 27, 2021 and supported by the affidavit of George Kithi sworn on even date and seeking the following Orders:a.Spentb.Thatthis honourable court be pleased to grant an order of Stay of proceedings in this suit pending the hearing and determination of this Application.c.That the court be pleased to grant leave to the applicant to lodge a Notice of appeal, against the Ruling made by the Hon. Justice Jairus Ngaah delivered on July 2, 2021 out of time.d.That the attached Notice of Appeal be deemed as properly lodged.e.That this honourable court be pleased to grant an order of Stay of proceedings in this suit pending the hearing and determination of the intended appeal, against the Ruling of Hon. Justice Jairus Ngaah delivered on July 2, 2021. f.Thatthe costs of this application be provided for.

Applicant’s case 2. On July 2, 2021, this Honourable Court delivered a Ruling in favour of the 1st respondent and the applicant being aggrieved by the said ruling intended to appeal. The applicant vide their letters dated July 2, 2021 and July 15, 2021 respectively requested for a certified copy of the ruling and typed proceedings to be able to appeal against the said ruling.

3. Theapplicant nevertheless did not instruct their advocates on whether to pursue the appeal but when they did, the time within which to file the notice of appeal and the appeal had lapsed culminating into the instant application.

4. It is the applicant’s case that the intended appeal has high probability of success as such, the applicant should be accorded an opportunity to be heard. Furthermore, the 1st respondent has already filed their Bill of costs dated August 20, 2021 which was scheduled for taxation on September 29, 2021 which Bill of costs arises from the ruling that the applicant intends to appeal against. Therefore, without orders for stay of execution and leave to appeal out of time, the applicant is apprehensive that the 1st respondent may proceed to tax the bill and begin execution against the applicant anytime from now, despite the applicant’s intent to file an appeal challenging the ruling of this honourable court.

5. The applicant further undertakes to deposit security as will be directed by the court and unless the orders sought are granted, the applicant herein stands to be prejudiced. It was also urged that the application has been filed timeously and without any unreasonable delay. Further, that the delay in lodging the notice of appeal and a memorandum of appeal was not intentional but due to the reasons that the advocate for the applicant had not received instructions to lodge the same. Be that as it may, no prejudice will be suffered by the 1st respondent if the orders sought are granted and this honorable court has unfettered jurisdiction to stay proceedings in this matter pending the determination of the appeal.

6. In their written submissions dated November 19, 2021, counsel submitted that the reason given by the applicant for not taking action within the prescribed time is that of inadvertence whose nature has been explained. As such, an advocate’s lack of instructions is reason enough to warrant the extension of time within which to appeal and having explained the nature, circumstances of delay and the mitigation steps taken, counsel urged the court to allow the applicant to file their appeal out of time. It was further submitted that the applicant’s explanation also goes in furtherance of section 79G of the Civil Procedure Act, which requires that before the court enlarges the time for appealing, the applicant must satisfy the court that he had good and sufficient cause for not filing the appeal in time.

7. Counsel further argued that in an application for stay of execution of a decree or order pending appeal, an applicant is obliged to satisfy the conditions set out in Order 42 Rule 6(2), aforementioned: namely (a) that substantial loss may result to the applicant unless the order is made, (b) that the application has been made without unreasonable delay, and (c) that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given. Further, that the court is now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions.

8. On whether the appeal is arguable, counsel sought to rely on the grounds set out in their memorandum of appeal attached to the application, as well as the prayers sought in the chamber summons dated May 29, 2018and submitted that the appeal was a viable one as it raises various triable issues which ought to be determined. Counsel argued that the 1st respondent stands to suffer no prejudice if the orders sought are granted.

9. Indeed, counsel urged the court, without going into the merits of the case, to realise the raised issues such as;a.The Chief Magistrate issuing injunction orders against a public entity, and further extending an already lapsed contract;b.The Chief Magistrate not having the requisite pecuniary jurisdiction to issue the said orders.

10. On whether the appeal would be rendered nugatory if stay is not granted, counsel submitted that disallowing the application for stay will expose the applicant to the option of execution at any time by the 1st respondent and the execution or payment of the taxation/decretal sum by the 1st respondent shall create a state of affairs that will irreparably affect the essential core of the appeal if successful and may expose the applicant to hardship while trying to recover the decretal sum and failure to recover this sum may have the effect of rendering the appeal nugatory. In the absence of proof of their ability to pay back the said sum, counsel urged this court to find that the applicant would suffer substantial loss. In any event, it was submitted that the applicant is willing to comply with any condition as shall be directed by this court. In conclusion, counsel urged the court to exercise its discretion and preserve the subject matter of the appeal in order to ensure the just and effective determination of the intended appeal.

The 1st respondent’s case 11. The 1st respondent opposed the application through the replying affidavit of Mary Esther Njeri sworn on November 2, 2021. It is the 1st respondent’s case that the Honourable Judge allowed the 1st respondent’s application dated May 15, 2019 which prayed for the dismissal of applicant’s application dated May 29, 2018 for being overtaken by events, for want of prosecution, for offending section 6 of the Civil Procedure Act and for being an abuse of the court process. Furthermore, the remedy sought by the applicant is an equitable remedy that is not of right but only available to a deserving party, at the discretion of the court, and the applicant has not demonstrated that it merits granting of the orders sought.

12. It was further their contention that the application for stay and leave appears to have been prompted by the fact that the 1st respondent served its Bill of Costs upon the applicant on August 23, 2021 and this is when the applicant/intended appellant decided to make this application to forestall execution of the orders of the court hence the instant application is an afterthought aimed at forestalling taxation of the 1st respondent’s taxation of the Bill of Costs.

13. In their view, the applicant ought to have been vigilant in instructing their advocates in July at the time of applying for certified copy of the ruling and typed proceedings as envisaged in paragraphs 2 and 3 of the grounds on the face of the application to pursue the appeal. That notwithstanding, no explanation at all has been tendered as to why the applicant took over two months in instructing its advocates to pursue an appeal. Be that as it may, the draft Memorandum of Appeal annexed to the Application discloses no chances of success in the intended appeal as the Judge correctly applied and interpreted the law in dismissing the applicant’s application in the circumstances of the case.

14. They further argued that the applicant had already filed an appeal against the Hon Magistrate’s judgment in HCC Appeal No. 287 of 2019 which appeal was still pending and therefore was pursuing double litigation or cases over the same matter contrary to section 6 of the Civil Procedure Act. Further, the applicant had not prosecuted his application for over one year and that it had been overtaken by events. That in his ruling, the Judge correctly stated that the application has been overtaken by events since the proceedings in the Magistrates Court against which the applicant sought to stop have been determined and a judgement delivered. That the said pending appeal HCCA No. 287 of 2019 is dealing with substantially the same issues raised in the application for judicial review and seeking the same remedy in two different courts is an abuse of court process. It is urged that the ruling the applicant currently intends to appeal against was delivered on July 2, 2021, and the applicant did not consider filing an appeal or stay of execution for about three months which delay is inordinate.

15. Further, that no valid excuse or reasonable explanation has been tendered by the applicant for the delay and that the reason advanced is remotely convincing. However, the 1st respondent stands to suffer extreme prejudice and loss if this application for stay is allowed as the applicant keeps denying it any benefit from the result of a successful litigation. In any event, the applicant has not specifically demonstrated the nature of loss it is likely to suffer in the event the orders are not granted. After all, any possible substantial loss for the applicant is already taken care of in his Civil Appeal No. 287 of 2019 since it has already obtained stay of execution of the judgment from the subordinate court.

16. Indeed, the applicant’s appeal No. 287 of 2019 was filed way back in May 2019 and after obtaining a stay of execution, the applicant has to date failed to prosecute that appeal or even file record of appeal and have it fixed for hearing and the applicant has unjustly been enjoying stay of execution for over two and a half years, since July 2019. In any event, the applicant has failed to demonstrate how its intended appeal would be rendered nugatory should execution issue as this is a liquidated claim in which any possible loss is marginal and urged that the application be dismissed with costs to the 1st respondent.

17. In their written submissions dated January 20, 2022, counsel reiterated that there is no proof of substantial loss and the applicant’s history of indolence coupled with undue delay. On security, it was submitted that the applicant should not be granted stay of execution at the expense of the 1st respondent’s business simply because the applicant has substantial funds and offers security. On leave to appeal out of time, the delay has not been satisfactorily explained to warrant the prayers sought being granted and this court is urged to find that the applicant had a chance to prosecute its JR application but failed to prosecute the same over a year hence was rightly dismissed for want of prosecution and therefore the intended appeal is not arguable, is frivolous and an abuse of the court process.

18. Counsel further submitted that 1st respondent stands to suffer extreme prejudice and loss if this application is allowed as the applicant keeps denying it any benefits from the result of a successful litigation. It was also noted that there is no Notice of Appeal in the court record/file and none has been served on the 1st respondent and therefore prayer (d) of the applicant‘s motion must fail. As such, it was submitted that the present application has failed to establish or meet the minimum threshold established by law to enable the court exercise its discretionary powers in favour of the applicant and grant it the orders sought.

Analysis and Determination 19. I have considered the pleadings and the arguments advanced by the parties herein. The issue for determination is whether the applicant has met the threshold for grant of the order of stay of proceedings and if so, whether the applicant should be granted leave to lodge a Notice of Appeal.

20. The question of whether or not to grant an order for stay of proceedings is a discretionary one and this discretionary power must be exercised judiciously. The court has to consider if it will be in the interests of justice to grant the same and the underlying interest ought to be that the appeal should not be rendered nugatory.

21. Stay of proceedings being a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation, the test for stay of proceeding is therefore high and stringent. In Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000, Ringera, J persuasively stated thus;“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” (emphasis added)

22. Similarly, in Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, it is stated that:“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”

23. Therefore, for this court to grant stay of proceedings, the applicant ought to have shown that it has an arguable appeal with high chances of success such that if stay of proceedings is not granted the appeal will be rendered nugatory.

24. The applicant has argued that it has an arguable appeal because the Chief Magistrate issued an injunction order against a public entity and further extended an already lapsed contract without having the requisite pecuniary jurisdiction to issue the said orders. The 1st respondent has however submitted that an appeal in HCCA No. 287 of 2019 was filed in May 2019 and stay orders such as the ones being sought in the instant application granted but the same has never been prosecuted. Be that as it may, the decision which the applicant now seeks to appeal is one subject to a ruling dated July 2, 2021 whereby the applicant’s application dated May 29, 2018 was dismissed for having been overtaken by events since the matter in the lower court was already heard and a judgment delivered.

25. A cursory look at the said ruling shows that the court noted that it is not the sort of application that would be granted because in light of the provisions of the Civil Procedure Act and the Rules made thereunder, the appellate route was equally, if not more convenient, beneficial and effective than the invocation of judicial review jurisdiction. In my view therefore, I find and hold that the applicant has not demonstrated that he has an arguable appeal.

26. The applicant has stated that the delay to lodge the appeal was because they failed to instruct their advocates in time. From the proceedings, it is clear that the applicant stayed close to three (3) months after the ruling had been delivered on July 2, 2021and were only jolted to action by the fact that the 1st respondent served its Bill of Costs upon the applicant on August 23, 2021, participated in the said proceedings and a ruling delivered November 16, 2021. The record also shows that it took the applicant another month after being served with the Bill of Costs dated August 20, 2021 to institute the instant application. The question is whether the delay was inordinate or unreasonable.

27. The question of unreasonable delay was dealt with in the case of Jaber Mohsen Ali &another v Priscillah Boit &another(2014) eKLR where it was stated: -“The question that arises is whether this application has been filed after unreasonable delay. What is unreasonable delay is dependent on the surrounding circumstances of each case. Even one day after judgment could be unreasonable delay depending on the judgment of the court and any order given thereafter. In the case of Christopher Kendagor v Christopher Kipkorir, Eldoret ELC 919 of 2012 the applicant had been given 14 days to vacate the suit land. He filed an application one day after the 14 days. The application was denied, the court holding that, the application ought to have come before expiry of the period given to vacate the land.”

28. In George Kagima Kariuki & 2others v George M. Gichimu & 2others(2014) eKLR, the court clarified the issue of delay. It was his view that: -“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favorably exercisable.” (see also: Stanley Kahoro Mwangi & 2 others vKanyamwi Trading Company Limited (2015) eKLR

29. The applicant has simply stated that they did not lodge the appeal in time because they had not instructed their advocates to pursue the appeal. No reason whatsoever has been advanced to show why they delayed to instruct their advocates. The applicant cannot therefore benefit from their own indolence. I therefore agree with the 1st respondent’s submissions that a plausible explanation has not been given by the applicant to warrant the orders sought. In the circumstances, I find that the delay was unreasonable.

30. Regarding the second issue, the applicant seeks to be granted leave to lodge a Notice of Appeal and the same be deemed to be properly lodged, however, there is no notice of appeal that has been lodged on record to enable the court grant the prayer sought, if at all. It is a well settled position in law and as buttressed by a long line of authorities by this Court that the decision of whether or not to extend time for filing an Appeal is an exercise of this Court’s discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whims or caprice. In general, the matters which a court takes into account in deciding whether to grant an extension of time are; the length of the delay; the reason for the delay; the chances of the Appeal succeeding if the application is granted; and the degree of prejudice to the respondent if the application is granted.

31. This matter was filed in the year 2018 and a ruling delivered on July 2, 2021. The attendant delay in the filing of the current application and in lodging the Notice of Appeal is not explained. As held in the George Kariuki case(supra), A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favorably exercisable.”

32. A further delay is likely to cause prejudice to the 1st respondent. In the circumstances, I find that the application dated September 27, 2021 is not merited. The upshot is that the same is dismissed with costs to the 1st respondent.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19THDAY OF MAY 2022. ............................A. K. NDUNG'UJUDGE