[2022] KEHC 2635 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYAHURURU

MISC. CIVIL APPEAL NO. 60 OF 2019

KENYA POWER & LIGHTING CO. LTD...............................APPELLANT/APPLICANT

-VS-

JOHN PETER MBUE MWANGI....................................................................RESPONDENT

RULING

1. By a notice of motion dated 30th August, 2021, the Appellant sought orders;

i. That the court order made on 7th May, 2020 and issued on 27th May, 2020 for stay of execution be vacated for failure by the Respondent to file an appeal and/or failure to comply with court orders.

ii. That the Applicant be allowed to execute the decree issued in Nyahururu CMC No. 76 of 2011.

iii. That the sum of Kshs.1,072,995/- deposited in court by the Respondent be paid to Kariuki Mwangi & Co. Advocates on behalf of the Applicant in satisfaction of the decree.

iv. That the Respondent be ordered to pay further interest on the decretal sum to date.

v. That the Respondent do pay to the Applicant costs of this application and the application dated 18th June, 2019.

2. The same is based on Section 3, Cap. 21, Order 42 Rule 1, 2, 10(1&2) & 12, Order 51 Civil Procedure Rules 2010and supported by grounds on the motion:

i. That by the court ruling delivered on 7th May, 2020, the Respondent was granted leave to file and serve an appeal within 30 days but has to date failed to comply.

ii. That the Respondent has not sought extension of time to file an appeal.

iii. That the application has been denied the fruits of the judgment and decree in the lower court for a long time.

iv. That it is in the interest of justice that this application be allowed as prayed.

3. It is also supported by affidavit of Kariuki Mwangi sworn on 30th August, 2021 and his supplementary affidavit sworn on 26th October, 2021.

4. The Respondent opposed same motion.

5. The parties were directed to canvass application via submissions which were filed and exchanged.

APPLICANT’S SUBMISSIONS:

6. It is submitted that the court delivered a ruling on 7th May, 2020 and granted the Respondent stay of execution, leave to file an appeal out of time and further ordered the Appellant to ensure the appeal was filed and served within 30 days from that date. The Respondent had not filed an appeal at the end of 30 days granted by this court.

7. It is submitted that, the argument by the Respondent in its replying affidavit that the order for filing the appeal within that period was pegged on obtaining proceedings is erroneous, far-fetched and misinterpretation of the court order.

8. It is argued that, the failure by the Respondent to comply with clear court orders led the Applicant to file this present application on 16th September, 2021 for the court to vacate the orders made on 7th May, 2020 for failure by the Respondent to comply with those court orders.

9. Reliance is made on the case of John Kipkemboi Kilel v Commissioner of Insurance [2005] eKLRand Loise Muthoni Njagi v Margaret Ciambaka Mugambi [2019] eKLR and also Kenya Powere & Lighting Company Ltd v Andy International [2020] eKLR.

RESPONDENT’S SUBMISSIONS:

10. It was submitted that, the registry has a duty to prepare and supply parties requesting typed proceedings within the confines of time available to them. Reliance is made on the case of Rodgers Abisai T/A Abisai & Company Advocates v Wachira Waruru & Another [2014] eKLR.

11. It is contended that, the Respondent filed a notice of appeal and promptly wrote a letter to the Deputy Registrar, to supply copies of typed proceedings to enable the Respondent to file a record of appeal.

12. It is argued that respondent exercised due diligence in pursuit of this cause and on several occasions, has communicated with the Deputy Registrar to assist in tracing of the file and to supply typed proceedings for purposes of filing a record of appeal.Reliliance is made on the Rodgers Abisai T/A Abisai & Company Advocates v Wachira Waruru & Another (supra)and Hassan Nyanje Charo v Khatib Mwashetani, Independent Electoral and Boundaries Commission, Juma Musa & Gideon Mwangangi Wambua [2014].

13. The delay in filing the record of appeal was attributed to Administrative errors on the part of registry which has failed to supply typed proceedings which are necessary in filing record of appeal.

DETERMINATION

14. The genesis of the instant matter is that, the lower court delivered judgment in Nyahururu CMCC No. 76 of 2011 in favour of the Applicant on 18th January, 2019 and a decree and certificate of costs were issued.

15. However, being dissatisfied with the said judgment and decree, the Respondent in an application dated 18th June, 2019 prayed for stay of execution of the decree and for leave to lodge an appeal out of time.

16. This court delivered a ruling on 7th May, 2020 and granted the Respondent stay of execution, leave to file an appeal out of time and further ordered the Appellant to ensure the appeal was filed and served within 30 days from that date.

17. The court ordered thus:

“Leave is hereby granted to the Applicant to file an appeal out of time and the appeal to be filed and served within 30 days of this order.”

18. It is not denied that the Respondent had not filed an appeal before the end of 30 days granted by this court nor sought extension of the time to file the appeal. The life span of order was 30 days and lapsed automatically in absence of compliance or extension by this court.

19. The argument by the Respondent in its replying affidavit that the order for filing the appeal within that period was pegged on obtaining proceedings is erroneous, far-fetched and misinterpretation of this court’s order aforesaid.

20. The formal application and payment of deposit for proceedings if at all done, could have been the basis to seek extension of time if delay was demonstrated to be on the registry side. The court did not order the Respondent to file the appeal after receiving a copy of the proceedings from the lower court.

21. The failure by the Respondent to comply with clear court orders nor seek extension of time given to lodge appeal justifiably led the Applicant to file this present application on 16th September, 2021 for the court to vacate the orders made on 7th May, 2020 for failure by the Respondent to comply with those court orders.

22. The Respondent failed and/or refused to comply with this clear and self-explanatory order. To date there is not appeal on record nor application to enlarge time given by the court,

23. In the case of John Kipkemboi Kilel v Commissioner of Insurance [2005] eKLR,the Court of Appeal held; as follows where the Applicant failed and/or refused to file court documents within the time ordered:

“I have considered all the evidence and submissions made before me and have reached the conclusion that the explanation of the delay has not been adequately explained…. It would not be fair to the Respondent for further indulgence to be granted to the Applicant by any way of extensions of time on the basis of the evidence before me.”

24. In the case of Loise Muthoni Njagi v Margaret Ciambaka Mugambi [2019] eKLR, the court held as follows when granting leave to file appeal out of time;

“The Defendant/Applicant is ordered to file the intended appeal within 30 days of today FAILING which the stay granted herein shall stand vacated and, therefore, inconsequential.

d. For avoidance of doubt, it is clarified that default in satisfying any of the orders granted herein shall render the stay granted herein automatically vacated.”

25. The court went ahead and held as follows when the Applicant failed to comply with its above orders:

“In the circumstances, the stay granted on 12th June, 2019 has automatically lapsed and is no longer extant.”

26. This specific order has also not been complied with. Thus the court finds no justification for the lapsed orders to remain on record thus makes the orders that;

i. The court order made on 7th May, 2020 and issued on 27th May, 2020 for stay of execution be and are hereby vacated for failure by the Respondent to file an appeal and/or failure to comply with court orders.

ii. The Applicant is allowed to execute the decree issued in Nyahururu CMC No. 76 of 2011.

iii. The sum of Kshs. 1,072,995/- deposited in court by the Respondent be paid to Kariuki Mwangi & Co. Advocates on behalf of the Applicant in satisfaction of the decree.

iv. The Respondent do pay to the Applicant costs of this application and the application dated 18th June, 2019.

DATED AND SIGNED AT NYAHURURU THIS 3RD DAY OF FEBRUARY, 2022.

....................................

CHARLES KARIUKI

JUDGE