[2017] KEHC 981 (KLR)

REPUNLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL APPEAL NO. 52 OF 2017

KENYA WILDLIFE SERVICES …….APPELLANT

-VERSUS-

SABINA MWOTHIRU …………….RESPONDENT

RULING

[1] The Notice of Motion Application dated 9th June 2017 is a twinning of the following orders;

1. Time for filling the appeal herein be enlarged and the Memorandum of Appeal filed herein be deemed as having been properly filled; and

2. Stay execution of the judgment entered by the Chief Magistrates Court in Maua on 22nd February 2017 in CMCC No. 224 of 2015 Sabina Mwothiru v Kenya Wildlife Services.

[2] The Application is expressed to be brought pursuant to Order 22 Rule 22, Order 42 Rule 6 (1) and (6). Order 51 Rule 1 of the Civil Procedure Rules 2010; Section 79G of the Civil Procedure Act, and all other enabling provisions of the Law. It is premised on the grounds inter alia that judgment against the Appellant in the sum of Kshs 607,000 was delivered on 22nd February 2017 in CMCC No. 224 of 2015. And the Appellant only became aware of that judgment on 26th May 2017 through a letter written by their advocates on record then M/S Mithega Kariuki Advocates. The Appellant did not, however, immediately instruct its advocates to file a Notice of Appeal and apply for stay of execution pending appeal due to shortness of notice. Therefore, unless the court granted an Order of Stay of Execution there was imminent threat of execution against the Appellant.

Respondent: Delay not explained

[3] In a Replying Affidavit filed in court on 6th July 2017, the Respondent deposed inter alia

(a) That upon delivery of the judgment on 22nd February 2017, the then advocate of the Appellant applied for and was granted a stay of execution for 30 days. And it is only after expiry of the said stay, that the Respondent asked her advocate to commence execution against the Appellant.

(b) On 30th March 2017, her advocates wrote to the Appellant’s advocates asking for settlement of decretal sums in several matters including this one. But the said advocates did not respond to the letter dated 30th March 2017.

(c) That the judgment advice of judgment by the then advocates for the Appellant was dated 2nd March 2017. It was therefore a mere excuse for the Appellant to talk of late receipt of judgment.

(d) That the application is incompetent as the firm of Mithega and Kariuki Advocates represented the Appellant in the lower court. Therefore, the firm of Hamilton Harrison and Matthews was a stranger in this matter for as long as Order 9 Rule 9 of the Civil Procedure Rules has not been complied with.

Submissions by the Appellant

[4] The Appellant responded to the objection and submitted that existence or otherwise of a court order or consent of outgoing under Order 9 Rule 9 of the Civil Procedure Rules is a matter of fact which calls for evidence to prove and cannot be raised as preliminary objection. The Appellant further submitted that the proviso to Section 79G of the Civil Procedure Act allows admission of an appeal filed out of time if the Appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time and has explained the delay in not filling the Memorandum of Appeal in time. They argued that it has been explained that the Appellant was notified of the outcome of the judgment after the time for filling the appeal had lapsed and that the Appellant had shown sufficient cause for extension of time.

Respondent’s submissions

[5] According to the Respondent, the Appellant was not being honest with the court for, the letter through which the judgment was communicated is dated 2nd March 2017 although they claim it was received on 26th May 2017. In any event, the Appellant or their legal counsel at the time did not give any explanation as to why that communication on delivery of judgment was made late. Nonetheless, the Respondent submitted that in the event that the court finds that the Applicant had laid a basis for extension of time, the Appellant should be ordered to pay half of the decretal sum to the Respondent and deposit the other half in a joint interest earning account in the name of the parties’ advocates.

DETERMINATION

[6] Proper order suggests that I should determine the request for extension of time first. Extension of time to file appeal is purely discretionary, except, the court should take into account the following factors:

1. The length of the delay;

2. The reason for the delay;

3. Possibly, the chances of the appeal succeeding if the application is granted; and,

4. The degree of prejudice to the respondent if the application is granted.

Of these factors, see the case ofLEO SILA MUTISO vs, ROSE HELLEN WANGARI MWANGI - CIVIL APPLICATION NO. NAI. 255 OF 1997 (unreported),that:-

“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.”

[5] Judgment herein was delivered on 22nd February 2017. The advocates for the Appellant at the time, wrote a letter dated 2nd March 2017, informing the Appellants of the judgment. It would appear that it was not until 26th May 2017, that the letter was received in the Appellant’s offices. This was a period of about 2 months after the said judgment was delivered and it ought to have been thoroughly explained. But, no attempt was made by the Appellant or its legal counsel to explain this delay. Nevertheless, despite the mistake of counsel I will respond to a higher call for justice and allow the Appellant 30 days to file appeal herein. .

Of stay of execution

[8] The relief of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules is discretionary, except, the discretion should be exercised judicially; not capriciously or whimsically. I should consider:-

a) Whether the application is brought without undue delay;

b) Whether substantial loss may result to the Applicant unless stay of execution is ordered; and

c)The type of security that the court considers appropriate for he due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.

Delay in bringing application

[9] Ordinarily this ground is simple. The judgment in this matter was delivered on 22nd February 2017. The Appellant’s then Advocates wrote to the Appellant on 2nd March 2017, informing them of the judgment. The letter is said to have been received on 26th May 2017. The letter was stamped on 26th May 2017- I have nothing to make me doubt this fact. Nevertheless, this was a period of about two months since delivery of the said judgment. And no explanation was given for late dispatch of the letter. This is mistake of counsel but I am willing to give the Appellant the benefit of the doubt. I excuse the delay.

Substantial loss occurring

[10] This is the cornerstone of the jurisdiction of court in order 42 rule 6 of the Civil Procedure Rules: to avoid rendering a successful appellant a mere holder of barren judgment. But this takes quite novel balancing act by the court of the two competing rights; appellant’s right of appeal and the Respondent’s right to immediate realization of his judgment. With humility, see a work of courtin the case ofABSALOM DOVA vs. TARBO TRANSPORTERS [2013] eKLR that:

‘’The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination’’.

In money decree as is the case here, substantial loss would occur if it is shown that the Respondent is not able to make a refund of the decretal sums should the appeal succeed. This is the legal burden of the Applicant which is not discharged by merely stating or making generalized statement that the Appellant knows not of the assets of the Respondent, and so may not be able to refund the decretal sum. But in a spit of sheer magnanimity of justice, and drawing from the fact that the Respondent is not really avers to stay being granted but on terms to wit; I hereby order that there shall be a stay of execution pending appeal on condition that the Appellant:-

(a) Files appeal in 30 days of this ruling;

(b) Pays one half of the decretal sum to the Respondent and deposits the other one half in an interest earning account in the joint names of counsels within 30 days of this ruling.

(c) Breach of any of these orders shall result into automatic lapse of stay and execution shall issue accordingly- there will be no necessity to apply for a declaration thereto.

Cost of application goes to the Respondent. It is so ordered.

Dated, signed and delivered in open court at Meru this 5th day of December, 2017

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F. GIKONYO

JUDGE