[2022] KEHC 15047 (KLR)

Kibunguji v Khaemba (Miscellaneous Application E081 of 2022) [2022] KEHC 15047 (KLR) (7 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15047 (KLR)

Republic of Kenya

In the High Court at Bungoma

Miscellaneous Application E081 of 2022

DK Kemei, J

November 7, 2022

Between

Victor Makokha Kibunguji

Prosecutor

and

Elizabeth Nafula Khaemba

Accused

Ruling

1. Vide an application dated October 12, 2022 the applicant sought for the following reliefs.(i).(Spent)(ii).(Spent)(iii).That the court be pleased to grant leave to the applicant to appeal out of time against the judgement made by Hon. Charles Soi Mutai on September 2, 2022 in Bungoma SPMCC No. 169 of 2019. (iv)That the said leave to operate as a stay of all proceedings.(v)That the proposed Appellant be granted leave to appeal against the whole. Judgement and decree of the Senior Principal Magistrate’s Court at Bungoma in Civil Case Number 164 of 2019 delivered on 2/9/22 without notice to the applicant.(vi)That the Memorandum of Appeal annexed hereto be deemed as duly filed and served.(vii)That the costs of the application be provided for.

2. The application is supported by the grounds on the face thereof and on the supporting affidavit of the Omagwa Angima learned counsel for the applicant sworn on even date. It was deponed inter alia, that the lower court case was concluded on September 2, 2022; that the delivery of the judgement was made in the Applicant’s Advocate’s absence as he had failed to diarize the date; that instructions to act were received from the Applicant on November 11, 2022 which is only eleven days outside the stipulated period of appeal; that proceedings of the lower court have since been applied for, that the Applicant needs to lodge appeal out of time; that the leave sought be deemed as stay of proceedings so as not to prejudice the Applicant’s intended appeal; that the respondent will not suffer any prejudice if the application is allowed.

3. The application is strenuously opposed by the Respondent who filed grounds of opposition as well as replying affidavit. Vide a replying affidavit sworn on October 19, 2022 the Respondent herein deponed inter alia; that judgment on liability had been agreed between the parties in the ratio of 15% to 85% in favour of the Respondent: that judgment was delivered on June 24, 2022 in the presence of both Advocates and that the Applicant’s claim that the same was delivered on September 2, 2022 is misleading; that no explanation was offered by the Applicant as to why he did not lodge the appeal since June 24, 2022 which is a period of about four months; that the applicant has approached the court with unclean hands; that the respondent stands to suffer prejudice if the application is allowed since she had sustained severe injuries in an accident attributed to the Applicant herein.

4. The Applicant upon being served with the grounds of opposition and replying affidavit by the applicant filed a further affidavit though styled as a replying affidavit sworn on October 24, 2022 wherein he deponed inter alia; that he was not aware of the delivery of the judgement until Auctioneers came and seized his motor vehicle registration number KAX xxxM; that the Application has been brought without unreasonable delay; that his right to appeal is sacrosanct and protected by the constitution and that the same has high chances of success; that the Respondent is on a mission to attach all the Applicants properties in pursuance of the decree in both Bungoma CMCC Number 164 of 2019 and 169 of 2019 which amounts to double execution since the plaintiffs in both cases are a couple who had sustained injuries as pillion passengers; that he has since settled the decretal sums in Bungoma CMCC No.164 of 2019 amounting to Kshs.405,715/-; that the applicant is not a man of means to offset the decretal means to offset the decretal sums in Bungoma CMCC No.169 of 2019 as he is a pastor without sustainable income; that the Applicant uses the attached vehicle to spread the word of God and that the gospel ministry will be crippled if the same is sold; that if the sale takes place then the appeal will be rendered nugatory.

5. The Respondent upon being served with the further affidavit by Applicant filed a further affidavit sworn on October 24, 2022 in which she deponed inter alia; that the subject motor vehicle registration number KAX 824 M has already been sold in a public auctionvideBungoma CMCC No.164 of 2019 Moses Mutoro vs Julius Sirkore Kisemei and Victor Makokha Kibunguchi and she annexed a letter dated October 19, 2020 by the Auctioneer to court.

6. The application was canvassed by way of oral submissions.

7. Mr. Oira learned counsel for the Applicant submitted that the thirty days period of appeal has elapsed and that the Applicant is only late by eight days which is excusable. It was submitted that the Respondent will not suffer any prejudice if the applicant is allowed to lodge his appeal out of time. Counsel pointed out that the Respondent’s claim that the execution has been caned out in CMCC No.164 of 2019 should be rejected since the cause of action arose from the same transaction and that the parties are a couple. On the issue of stay of execution, it was submitted that once a party has preferred an appeal, the same should operate as stay of execution pending determination of the appeal. It was urged that if the vehicle is sold during the pendency of the appeal the same will be rendered nugatory in the end. Counsel urged the court to invoke its pavers and grant the orders sought in line with section 79G of the Civil Procedure Act and Article 159 of the Constitution.

8. Mr. Bwonchiri learned counsel for the Respondent submitted that the applicant’s economical with the truth regarding the date judgment was delivered. According to the respondent, the same was delivered on the June 24, 2022 and she urged the court not to grant orders against judgment which does not exit, as the court cannot grant leave against two decrees and that the applicant should choose the one, she wishes to appeal against contrary to what she has indicated in paragraph 3 of the Memorandum of Appeal. It was also submitted that the suit vehicle has already been sold pursuant to and attachment in Bungoma CMCC. 164 of 2019. According to counsel the applicant has deliberately opted no to responded to the Respondent’s position that the judgment was delivered on June 24, 2022 and not September 2, 2022 so as not to be seen as being late and hence the applicant has come with unclean applicant has come with unclean hands. It was submitted that the Applicant has not sought for a prayer for stay of execution pending the intended appeal in compliance with Order 42 Rule 6 of the Civil Procedure Rules and neither has the applicant satisfied the conditions thereunder such as provision of security etc.

9. I have considered the application rival affidavits and submissions tendered. The two issues arising for determination are firstly whether the court should grant the Applicant leave to lodge his appeal out of time and secondly, whether the court should grant an order of stay of execution of decree pending determination of the intended appeal.

10. As regards the first issue 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 affected 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.”

11. Therefore, an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so, since as was held in Feroz Begum Pureshi and Anothervs.Magambhai Patel and others [1964] EA 633 that there is no difference, between the words “sufficient cause” and “good cause”. In the case of Daphne Puvyvs Murray Alexander Carson [1933] EA 546 it was held that though the provision for extension of time is requiring “sufficient reasons” should receive liberal construction so as to advance substantial Justice when no negligence nor inaction, nor want of bonafides is imputed to the appellant, its interpretation must be in accordance with judicial principles. If the appellant had a good case on the merits but it out of time and has no valid excuse for the delay, the court must guard itself against the danger of being led away by sympathy, and the appeal should be dismissed as time barred even if at the risk of injustice and hardship to the appellant.

12. As to the principles to be considered in exercising the discretion whether or not to enlarge time, the court in the case of first American Bank of Kenya Ltd vs Bulat P. Shah and 2 others HCCC No.2255 [2002] 1 EA 65 set out the facts to be considered in deciding whether or not to grant, such application and these arei.the explanation if any for the delay;ii.the merits of the contemplated action; whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the cause of justice(iii)whether or not the Respondent can adequately be compensated in cots for any prejudice that he may suffer as a result of a favourable exercise of discretion infavour of the applicant.

13. In the present case the applicants draft Memorandum of Appeal is dated October 12, 2022 while the judgment appealed from was delivered by the lower court on June 24, 2022 as contended by the Respondent while the Applicant indicated that the judgement was delivered on September 2, 2022. It is instructed that none of the parties availed to court a copy of the decree of the lower court for perusal. I find that whether the judgment was delivered on either of the above dates, the bottom line remains that the period of appeal has already lapsed. If the former dated are to be taken into account then the period of delay is about four months while if the later date is taken into account then the delay will be some weeks but less than a month. The Respondent has maintained that the Applicant has used the later dates so as to bridge the period of delay to a lesser one palatable before the court. However, none of the parties availed copies of the decree from the lower court. In an application for extension of time, where the court is being asked to exercise discretion, there must be some material before the court to enable its discretion to be exercised. Once there is non compliance the burden is upon the party seeking indulgence to satisfy the court why the discretion should nevertheless be exercised in his favour and the rule is that where there is no explanation, there shall be no indulgence. See Ratman vs Cumara Samy [1964] 3 ALLER 933 Savil vs Southern Health Authority [ 1995] 1 WLR 1254.

14. Section 79G of theCivil Procedure Act requires that before the enlarges the time for appealing, the applicant must satisfy the court that he had a good and sufficient cause for not filing the appeal in time. The Applicant’s counsel in the supporting affidavit averred that he received instruction to act for the Applicant on October 11, 2022 and that he immediately requested the court registry for certified copies of proceedings. It was further averred that an associate in the applicant’s law firm had failed to diarize the date of the judgment and hence there was no appearance for purposes of seeking for orders of stay of execution pending an intended appeal. It is my considered right that the period of delay is not that inordinate as to warrant a denial. Article 48 of the constitution guarantees every person access to justice, in addition Article 50 (I) of the constitution, every person has the right to have any dispute that can be resolved by application of law and decided in a fair and impartial public hearing before a court, or if appropriate another independent and impartial tribunal or body. Indeed, the ultimate goal of the justice system is to hear and determine disputes fully. It follows therefore that no person who has approached the court seeking an opportunity to ventilate their grievances fully should not be locked out. In the instant case the applicant has approached the court about four or so months after delivery of the judgment by the lower court. I find the said delay is not inordinate or unreasonable. It is not in dispute that the discretion of this court to enlarge time for filing of a late appeal is unfettered. It is noted that as soon as the applicant became aware of the matter he filed the present application. This is clear evidence that the applicant is desirous of pursuing an appeal. Th Respondent will not suffer any prejudice if the applicant is allowed to lodge his appeal out of time since costs can adequately compensate her in any event. I find it is fair and just to allow the Applicant an opportunity to ventilate his appeal.

15. For all the above reasons, I find the applicants request for enlargement of time to file memorandum of appeal merited. He will be given timelines within which to comply.

16. As regards the second issue, order 42 Rule 6 (i) and (ii) of the Civil Procedure Rulesprovide as follows:“(1).No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed 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 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 to have such order set aside.2. . No order for stay of execution shall be made under sub-rule( i)unless-a.The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; andb.Such security as the court order for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

17. On the issue of whether the application has been made without unreasonable delay, it is noted that the applicant has surmounted the same as analyzed in paragraph 13 herein above.

18. On the issue of substantial loss the applicant has averred that he is a pastor based in Kitale and that he uses the attached vehicle for spreading the gospel to this congregants and that if the same is sold then he stands to suffer great prejudice. He has also claimed that the decretal sum is quite colossal yet he has managed to satisfy another decree in which the decree holder is the Respondent’s husband as the same arose from an accident in which both of them were pillion passengers. The Respondent has countered the assertion by maintaining that the execution wherein the vehicle has been attached was in respect of Bungoma CMC No. 164 of 2019 whereas this matter related to Bungoma CMCCNo. 169 of 2019. Even thought the Applicantvide his draft memorandum of appeal has challenged the rial court’s decision in both cases, I find the applicant’s affidavit to be irregular as he cannot lodge one memorandum of appeal against, no decisions. He ought to file separate appeals and later on seek to have them consolidated if the subject matter in dispute had arisen for the same transaction (res gestae). The applicant was expected to show the extent of substantial loss to be suffered if stay is not granted. In Bungoma High Court Msc. Civil Application No. 42 of 2011 James Wangalwa and AnothervAgnes Naliaka Cheseto the court that an applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal as this is what substantial loss would entail. Again in the case of Kenya shall Ltd.vsKibiru [ 1986] KLR 410 the court held as follows:“It is usually a good rule to see if order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a same case when an appeal would be rendered nugatory by some other event. Substantial loss in its variance form, is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence, it is difficult to see why the respondent’s should be kept out of their money.”It is noted that the Applicant has sought for a prayer to the effect that the leave granted to him to lodge appeal out of time should act as a stay of execution pending determination of the intended appeal. I find this is untenable in view of the clear provisions of order 42 Rule 6 (I) and (2) of the Civil Procedure Rules. The Applicant is bound to satisfy all the three conditions imposed thereunder. The Respondent has claimed that the matter has been overtaken by events since the subject vehicle has already been sold vide a different suit namely Bungoma CMCC No. 164 of 2019. The Respondent annexed a letter dated October 19, 2022 by the auctioneer indicating that motor vehicle Registration No. KAX xxxm make Toyota Rav u old model was sold in a public auction for a sum of Kshs.120,000/-. The applicant is not a party in the said suit and has not seen it fit to enjoin the decree holder therein so as to accord him.her an opportunity to participate in these proceedings. It would be unjust too interfere with an innocent decree holder from enjoying the fruits of his/her judgement when he/she has not been enjoined into the present proceedings. Hence the applicant’s request for an order of stay in that regard is not meritorious as he has not satisfied the above condition.

19. Finally on the issue of whether security has been offered by the Applicant, it is noted that in all the affidavits in support of the application the applicant has remained silent on the issue despite knowing very well that it must be fulfilled so as to entitle him deny the successful Respondent form enjoying the fruits of the judgment. She Applicant is obliged to offer security for the due performance of the decree. I agree with the court’s position in the case of Mwara Karuga t/a Limited Enterprises Vs Kenya Bus Services Ltd. & 4 others [2015]eKLR where it held as follows:“the security must be one which shall achieve due performance of the decree which might ultimately be binding on the Applicant. The rule does not, therefore, envisage just any security. The words “ ultimately be binding” are deliberately used and are useful here, for they refer to the entire decree as will be payable at the time the appeal is lost. That is the presumption of law here. Therefore the ultimate decree envisaged under Order 42 Rule 6 (2)(b) of the Civil Procedure Rules includes costs and interest on the judgement sum unless the latter two were met granted which is Seldom. The security to be given is measured on that yardstick.From the foregoing, the Applicant was bound to satisfy this condition before an order of stay of execution could be granted. This court is expected to ensure in a fair manner ensure that the appeal is not prejudiced while at the same time the decretal sums would be available if required. However, the same can only be achieved if the applicant provides security for the due performance of the decree once the appeal is determined. As the applicant has not furnished security. I find that his conduct is one of wishing to have his cake and eat it to the prejudice of the Respondent. I am satisfied that the applicant has failed to satisfy this condition.

20. In the result it is my finding that the Applicant’s application dated October 12, 2022 only succeeds to the extent that prayer No.3 is allowed and that the Applicant is granted leave to file and serve memorandum of appeal within ten (10) days from the date hereof. The rest of the prayers stand dismissed with costs to the Respondent.Orders accordingly.

DATED AND DELIVERED AT BUNGOMA THIS 7TH DAY NOVEMBER, 2022. D. KEMEIJUDGEIn the presence of:Dira for ApplicantWanjala for Bwo’nchiri for RespondentKizito Court Assistant