[2023] KEHC 26945 (KLR)

Kimani & another v Benson (Civil Appeal E006 of 2023) [2023] KEHC 26945 (KLR) (Civ) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26945 (KLR)

Republic of Kenya

In the High Court Nyandarua

Civil

Civil Appeal E006 of 2023

CM Kariuki, J

December 14, 2023

Between

William Karanja Kimani

1st Appellant

Richard Mungai Karanja

2nd Appellant

and

Peter Waheho Benson

Respondent

(Appeal from Judgment and Orders dated 22nd November 2022 of Hon. Mr. S Mogute, Principal Magistrate in MCCC E203/2021 at Nyahururu Chief Magistrate Court)

Ruling

1. By a Notice of Motion date 3/2/2023 the application seeks:a.That this application be certified as urgent and service be dispensed with in the first instance.b.That a stay of execution of the judgment of Hon. Stephen O. Mogute, PM in MCCC E203/2021 on the 22nd November, 2022 do issue pending the hearing and determination of this application.c.That this honourable court be pleased to grant the applicant leave to appeal out of time against the judgment delivered by Hon. Mr. Stephen O. Mogute, PM MCCC E203/2021 on the 22nd November 2022. d.That this honourable court be pleased to issue an order for stay of execution of the judgment entered and delivered by Hon. Mr. Stephen O. Mogute, PM in MCCC E203/2021 on the 22nd November 2022 pending the hearing and determination of the intended appeal.e.That the costs of this application be provided forf.That any other orders that meets the ends of justice.

2. It is based on ground on the application.i.That the Hon. Mr. Stephen O. Mogute, PM delivered a judgment in MCCC E203/2021 on the 22ND November 2022. ii.That unfortunately the judgment was delivered in the absence of the appellant herein who did not get any notice and/or was not aware of the date of the said judgment.iii.That the appellant has only recently in January, 2023 become aware that the judgment was delivered in the matter on 22nd November 2022. iv.That the time for appeal had run out even before the Applicant herein became aware the judgment.v.The decree holder /Respondent herein has taken substantive step to execute the same rendering the Appeal Nugatory.vii.That it is the interests of justice that the Applicant be allowed to appeal the Ruling of the Hon. Mr. Stephen O. Mogute, PM delivered a judgment in MCCC E203/2021 on the 22nd November 2022 out of the prescribed time.viii.That the respondent will not be prejudiced if the said leave is granted.ix.That there has been no inordinate delay in bringing this application.

3. It is supported by affidavit of Richard Mungai Karanja Benson sworn on even date.

4. The same is opposed by the Respondent via Affidavit of Peter Waheho Benson Sworn 20/4/2023.

5. Parties were directed to canvass same via submission which they filed and exchanged.

Applicants Submission 6. Issues for determinationa.Whether the applicant met the threshold for grant of orders of stay of execution?b.Whether the applicant should be granted leave to appeal out of time?

Analysis of Issues, Law and facts Whether the applicant met the threshold of grant of orders of stay of execution? 7. It is submitted that the applicant has met the threshold of grant of orders of stay of execution. The principles upon which the court may stay the execution of decree appealed from are settled vide Order 42 Rule 6 of the Civil Procedure Rules which is to the effect that, he has to demonstrate ‘that Substantial loss my result to him unless the order is made ,that the application has been made without unreasonable delay; and the applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.

8. The applicant submits that, he stands to suffer substantial loss unless the order is made. Firstly, because he will be liable to pay the decretal sum which will render the appeal nugatory. Secondly, it will be costly and time consuming for the applicant to recover the sum from the respondent hence prejudicing the applicant. Moreover, the respondent will not suffer any loss if the stay is granted as they will adequately be compensated as decree holders should the appeal be dismissed. Reliance is made on the case of Jamii Bora Bank Limited & Another V Samuel Wambugu Ndirangu.

9. The applicant submits that, the application was made without unreasonable delay. That time was taken because the judgment in question was delivered in the absence of the applicant who did not get any notice and was not aware of the said judgment hence the judgment constituted an irregular judgment. The applicant only became aware in January 2023 that judgment was delivered on 22nd November 2022. The time for appeal had run out before the applicant became aware. The application was made on 3rd February, 2023 which was sooner enough.

10. The delay to appeal was because the applicant/appellant only became aware in January, 2023 that judgment was delivered on 22nd November 2022. The time for appeal had run out before the applicant became aware.

11. The applicant submits that some of the factors that aid courts in exercising the discretion whether to extend time to file an appeal out of time were reiterated in the case of Court of Appeal of Thuita Mwangi – Versus – Kenya Airways Ltd[2003] eKLR, to include The period of delay: the reason for the delay; The arguability of the appeal; and the degree of prejudice which could be suffered by the if respondent the extension is granted.

12. The applicant contends that, the period of delay was not inordinate. Judgement was entered on 22 November 2022 and the application seeking time extension was made on 3rd February, 2023 and service was effected on the respondents on 9th February, 2022. Reliance is made on the case of Nicholas Kiptoo Arap Salat – Independent Electoral and Boundaries Commission & 7 others [2014] eKLR.

13. Thus, he concludes that, the appeal has merit and raises triable issues and it is not in any way meant to deny the respondent the enjoyment of the fruits of litigation. If the 11time for an appealing is not enlarged the applicant will be greatly prejudiced by virtue of being denied their right to appeal. Reliance is made on the case of Kenya Power & Lighting Company limited vs. Benzene Holdings Limited t/a Wyco Paints [2016] eKLR.

Respondent’s Submissions 14. Respondent submits that, the judgment was delivered on 22nd November 2022. The instant application was filed by an advocate who was not on record as he never sought, leave nor consent was sought to be on record. As far as the Respondent is concerned, no such application has been served upon the Respondent and or any consent.

15. The Applicants herein have contended that they did not know when the judgment was delivered. They have not denied that they had an advocate on record Ngigi & Co Advocates. The Respondent herein has demonstrated that the Applicants advocates were served with the notice and an affidavit of service was filed. The Applicants have not shown what they did to follow up on the matter. The Applicants 'herein have not given any reasonable ground to warrant the granting of leave to file an appeal.

16. On the issue of stay pending appeal, it is submitted that,the orders sought by the Applicants are discretionary orders. The discretionary relief any stay of execution is designed on the basis that no one would be worse off by virtue of an order of the court; the court in balancing the two competing rights focuses on their reconciliation. Reliance are made on the case of Tarbo Transporters vs. Absalom Dova [2013] eKLR.)

17. The jurisdiction to grant an order of stay sought by the Applicants herein is provided under Order 42 rule 6 (1) of the Civil Procedure Rules. The three conditions has to be met and satisfied simultaneously for the court to exercise its discretion and grant a stay of execution.Reliance is made on the case of M.O.M Amin Transporters Limited & another v Alexander Ndung'u Mbugua & 2 others [2017] eKLR .

18. On the limb of unreasonable delay, it is submitted that, the judgement on the subject matter of the appeal was delivered on 22nd November 2022. The Applicants herein were represented in the suit by a firm of advocates. The application herein was filed on 3rd February 2023, thus there is unreasonable delay in moving the court.

19. On the limb of substantial loss, it is submitted that, the Applicant has not demonstrated the kind of loss he is likely to suffer if a stay of execution is not granted. Reliance is made on the cases of M/S Portreitz Maternity -Vs- James Karanga Kabia Civil Appeal No. 63 of 1997,and Carter & Sons Ltd vs Deposit Protection Fund Board & 2 others Civil Appeal No. 291 of 1997. In any event, it is submitted that, applicants have not offered any security and or their willingness to offer any security.

Issues Analysis and Determination 20. The issues arising herein are whether the applicant has demonstrated merit for grant of leave to appeal out of time and whether the stay of execution of the impugned decree has any merit and costs.

21. The decision to extend time for appealing is essentially discretional and that the matters which the court considers in deciding whether to grant an extension of time are; The length of the delay,2. The reason for the delay,3. The chances of the appeal, succeeding if the application is granted 4. The degree of prejudice to the respondent.

22. The delay to appeal is said to have been occasioned by the applicant/appellant only becoming aware in January, 2023 that judgment was delivered on 22nd November 2022. The time for appeal had run out before the applicant became aware.

23. It is not denied that applicants had an advocate on record Ngigi & Co Advocates. The Respondent herein has demonstrated that the Applicants advocates were served with the notice and an affidavit of service was filed. The Applicants have not shown what they did to follow up on the matter. The Applicants 'herein have not given any reasonable ground to warrant the granting of leave to file an appeal.

24. However, the delay was slightly over two months of which the respondent can be compensated with costs. “The relation of rules of practice to the administration of justice is intended to be that of a handmaiden rather than a mistress and that the court should not be too far bound and tied by the rules, which are intended as general rules of procedure, as to be compelled to do that which will cause injustice in a particular case. See Githere vs Kimungu (1976-1985) EA 101.

25. In the instant case I will grant the applicant leave to file appeal with seven (7) days from dates herein subject to conditions to be set by this court he stands to suffer substantial loss unless the order is made. Firstly, because he will be liable to pay the decretal sum which will render the appeal nugatory. Secondly, it will be costly and time consuming for the applicant to recover the sum from the respondent hence prejudicing the applicant. Moreover, the respondent will not suffer any loss if the stay is granted as they will adequately be compensated as decree holders should the appeal be dismissed. Reliance is made on the case of Jamii Bora Bank Limited & Another V Samuel Wambugu Ndirangu later herein.

26. On stay of execution, the principles upon which the court may stay the execution of decree appealed from are settled vide Order 42 Rule 6 of the Civil Procedure Rules which is to the effect that, he has to demonstrate ‘that Substantial loss my result to him unless the order is made ,that the application has been made without unreasonable delay; and the applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.

27. The applicant stands to suffer substantial loss unless the order is made. Firstly, because he will be liable to pay the decretal sum which will render the appeal nugatory. Secondly, it will be costly and time consuming for the applicant to recover the sum from the respondent hence prejudicing the applicant. Moreover, the respondent will not suffer any loss if the stay is granted as they will adequately be compensated as decree holders should the appeal be dismissed. Reliance is made on the case of Jamii Bora Bank Limited & Another V Samuel Wambugu Ndirangu.

28. The court finds that the conditional stay warranted to balance the interests of all the parties. Thus, the court makes the orders;i.The Leave is granted to file and serve appeal within seven (7) days from dates hereinii.There will be a stay of execution upon filing the appeal as stated (i) above on condition that the applicant shall deposit decretal amount in interest earning joint account in names of the parties advocates within 30 days from the date of the filing the appeal.iii.In default of any of the above conditions (i) and (ii) above, the execution to issues.iv.Costs to the respondent assessed at ksh 10,000 payable within 30 days and in default execution to issue.

DATED, SIGNED AND DELIVERED AT NYANDARUA THIS 14TH DAY OF DECEMBER 2023. ................C KARIUKIJUDGE