[2023] KEELC 17543 (KLR)

Kimanzi & 2 others (Appealing as the Secretary, Chairman and Treasurer of Kwa Kiluvi Wetland Maintenance and Reservation Committee) v Mumo & 2 others (Miscellaneous Application E003 of 2023) [2023] KEELC 17543 (KLR) (18 May 2023) (Ruling)

Neutral citation: [2023] KEELC 17543 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitui

Miscellaneous Application E003 of 2023

LG Kimani, J

May 18, 2023

Between

Fredrick Kimanzi

1st Applicant

Mwasi Nzenge

2nd Applicant

Mary Mwendwa

3rd Applicant

Appealing as the Secretary, Chairman and Treasurer of Kwa Kiluvi Wetland Maintenance and Reservation Committee

and

Kitema Mumo

1st Respondent

Ndemwa Mwasya

2nd Respondent

Kithongo Kiru

3rd Respondent

(An application for extension of time to file an appeal out of time from the Judgment of the Magistrate’s Court at Kyuso by Hon. John Aringo-SRM dated 27th July 2022 in Kyuso ELC Case 11 of 2019. )

Ruling

1. This ruling is in respect of the Notice of Motion dated 17th of February 2023 which seeks the following orders:1. Spent2. This Honourable Court be pleased to grant leave to the Applicants/Intended Appellants to appeal out of time against the Judgment of the Honourable Magistrate John Aringo, Senior Resident Magistrate in Kyuso M.ELC Number 11 of 2019 and Judgment delivered on 27th July 2022. 3.That this Honourable Court be pleased to stay execution of the Judgment and Decree in Kyuso M.ELC Number 11 of 2019 pending the hearing and determination of this application and intended appeal therein.4. The costs of this application be provided for.

2. The application is supported by the affidavit of the 1st Applicant sworn on behalf of all Applicants. It is founded on the grounds that judgment was entered in Kyuso Court MELC 11 of 2019 on 27th of July, 2022 in favour of the Respondent and against the Applicants whereby a permanent injunction was issued barring the Applicants from interfering with the suit land and costs were awarded to the Respondents. Being aggrieved by the said decision, the Applicants applied for copies of judgment and proceedings and stay of execution on the same date. They stated that they followed up on the copies of judgment and proceedings but their efforts were futile and the said documents were only obtained on 25th January, 2023, six months after payment of court fees.

3. The Applicants contend that the delay in filing the appeal is excusable since it was not attributed to them. They further claim that there is no order of stay of execution and the Respondents have filed a party and party bill of costs meaning that execution is imminent.

4. The Applicants have stated that the Memorandum of Appeal raises fundamental triable issues of law and triable issues which can only be canvassed when the intended appeal is heard on merit. They have added that they are officials of Kwa Kiluvi Wetland Reservation Committee which is not a legal person and has no assets therefore they will be personally condemned to pay the bill of costs. The Applicants have come to this court having the discretionary power being the only recourse available to them.

The Respondents’ Case 5. The 1st Respondent swore a Replying affidavit on behalf of all Respondents deposing that there was inordinate delay in bringing this application and the Applicants have not attached any documents or any evidence to prove that they actually followed up on the judgment and proceedings after requesting for the same. They also highlighted that the Applicants have failed to attach a certificate of delay executed by the Court, stating that this would be the only conclusive evidence that the proceedings and judgment were not ready earlier. The Respondents term this application as a knee-jerk reaction to the upcoming taxation of the Bill of Costs.

6. In further response, the 1st Respondent deposed that the Applicants were at liberty at any time to seek stay of execution and could have sought it orally from the trial court at the reading of the judgment or thereafter through a formal application. The Respondents state that this is a last-ditch effort by the Applicants to deny them the fruit of their judgment.

7. They contend that the Intended Appeal does not raise any arguable issues and then proceed to dissect each ground and why it should fail. Their position is that the application is a malicious attempt at preventing them from enjoying the fruits of their judgment and that they are going to suffer irreparable harm since they are in the process of executing for the costs that they are owed and are entitled to.

The Applicants’ written submissions 8. The Applicants submitted that there is an imminent threat of execution since the proceedings to tax the bill are ongoing and unless the Court intervenes the Applicants will suffer irreparable loss and the intended appeal will be rendered nugatory. Citing Order 42 Rule 6 of the Civil Procedure Rules [2010], counsel submitted that stay of execution is issued if the court is satisfied that substantial loss may result and the application has been made without unreasonable delay. They relied on the holding in the case of Butt v Rent Restriction Tribunal [1979] where the court held that the power of the court to grant or refuse stay of execution pending appeal is discretionary.

9. On the element of substantial loss, the Applicants reiterated that the Wetland Reservation Committee is not a legal person and has no assets and will be personally condemned to pay costs awarded and the appeal will be rendered nugatory. They cited the case of Samuel Murigi Waigwa v Francis Babu Mwangi [2020]eKLR .

10. With regard to security for costs, they relied on the case of Focin Motorcycle Co. Ltd v Ann Wambui Wangui & Another [2018] eKLRwhere the Court held that it is sufficient for the Applicant to state that he is ready to provide security of costs or to propose the kind of security.

11. On whether leave to file the appeal out of time should be granted, counsel quoted Section 79G of the Civil Procedure Act and relied on the holding in the case of First American Bank of Kenya Ltd v Gulab P. Shah & 2 others [2002]1EA that was cited with approval in the case of Julius Thuranira Laichena v Mwontune M’laichena & 5 others [2021] eKLR outlining the principles for extension time to file an appeal.

12. The applicant submitted that the intended appeal raises fundamental questions to wit; whether the wetland in dispute is part of unregistered community land and is it to be held by the County Government as a trustee.

13. The Applicants submit that the Respondents cannot suffer any damage that is incapable of compensation in costs for any prejudice that they may suffer. They pleaded their right to fair trial in Article 50(1) of the Constitution and access to justice under Article 48.

The Respondents’ submissions 14. Counsel for the Respondents submitted that the delay that the explanation for the delay was not evidenced by proof that they followed up on the judgment and typed proceedings. They relied on the criteria for granting leave to file an appeal out of time as given in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Comission& 7 others [2014] eKLR as well as the case of Thuita Mwangi v Kenya Airways Ltd [2003] eKLR.

15. The Respondents also relied on the Supreme Court case of County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR where the Court mentioned that delay in getting typed proceedings is not a prima facie panacea for a case of delay whenever it is pleaded but each case must be determined on its own merit and the same position was taken in the case of Paul Mutinda Muembi v Clement Argwings Obado& 2 others [2022] eKLR.

16. Regarding the arguability of the Appeal, counsel relied on the case of NIC Bank Limited & 2 others v Mombasa Water Products Ltd [2021] eKLR where the Court re-stated what constitutes an arguable appeal. Counsel submits that the issues raised in the Applicants’ Memorandum of Appeal are not arguable and they proceeded to give grounds for their stand on this.

17. The Respondents submitted that the they will suffer immense loss if the orders are granted since the Bill of Costs in the lower court is on the verge of being taxed and that they have a right to enjoy the fruits of their litigation which must come to an end as they relied on the case of Kenya Shell Limited v Benjamin Karuga Kibiru & Another [1986] eKLR .

18. On the question of unreasonable delay, the Respondents submit that the Applicants have brought this application eight months after delivery of the judgment without any good excuse for doing so.

19. Further, counsel submitted that the Applicants have not given any evidence of having deposited any security as required by Order 42 Rule 6(2) of the Civil Procedure Rules and quoted from the case of Nganga Kabae v Kahunyo Kimani [2005] eKLR that stay should have security.

Analysis and Determination 20. The Applicants seek extension of time for filing an Appeal and a stay of execution of the judgment delivered by Hon. Aringo SRM on the 27th July 2022. The Applicants state that even though they applied for copies of typed proceedings and judgment it took them till 25th January 2023 to finally acquire them. It is noted that indeed the Applicant’s Counsel did apply for copies of typed proceedings and judgment and stay of execution, but whether or not it was granted does not reflect in the proceedings attached to the application.

21. Section 79G of the Civil Procedure Act cap 21 laws of Kenya provides that the period allowed for filing an appeal from a subordinate court to the High Court is 30 days. The provision is as follows;“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 appealed 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 a good and sufficient cause for not filing the appeal in time”

22. In the case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 which is the locus classicus case for extension of time, laid down the parameters as follows:“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.”This was reiterated by Odek, JJ. A in Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR.

23. The Respondents also relied on the case ofNicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR where the Learned Judges of the Supreme Court laid down the factors to be considered in extending time for filing an appeal and quoted with approval the following cases;“The Court of Appeal has pronounced itself on this aspect severally. Recently, in Paul Wanjohi Mathenge v Duncan Gichane Mathenge [2013] eKLR the Court of Appeal while referring to other authorities observed (at paragraph 12):“The discretion under Rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance. In Henry Mukora Mwangi v Charles Gichina MwangiCivil Application No. Nai. 26 of 2004, this Court held:-“It has been stated time and again that in an application under rule 4 of the Rules the learned single Judge is called upon to exercise his discretion which discretion is unfettered. It may be appropriate to re-emphasize this principle by referring to the decision in Mwangi v Kenya Airways Ltd. [2003] KLR 486 in which this Court stated: -“Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance, in Leo Sila Mutiso v Rose Hellen Wangari Mwangi - Civil Application No. Nai. 255 of 1997 (unreported), the Court expressed itself thus: -“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.”

24. The period of delay has been approximately seven months from the time of judgment on 27th July, 2022 to the time of filing this Application in February 2023. The Respondents contention is that the Applicants have not demonstrated any evidence that they actually followed up on the typed proceedings, pointing out that they have not annexed a Certificate of Delay to show that the proceedings were actually delayed. In the case of Mistry Premji Ganji (Investments) Limited v Kenya National Highways Authority [2019] eKLR concerning an appeal from the High Court to the Court of Appeal, the Learned Judges of Appeal held thus:“The appellant has blamed the High court registry for the delay in lodging the record of appeal. However, this argument that the registry was to blame cannot hold because, under the proviso to Rule 82 (1) aforesaid, an appellant is afforded some reprieve in so far as computation of time is concerned, if there was delay in preparation of the proceedings upon making a written request for the proceedings. In other words, the computation of the 60 day window within which he should lodge the record of appeal is suspended during the typing of proceedings provided the appellant serves the letter bespeaking proceedings upon the court and the respondent. A certificate of delay is usually issued in such cases, specifying the time taken for the proceedings to be typed, for purposes of exclusion of the same during computation. It is common ground that the letter bespeaking proceedings was never served upon the respondent in this case. The appellant therefore was obliged to file the record of appeal strictly within sixty uninterrupted days of filing the Notice of appeal, this period lapsed on 25th April, 2017. Having failed to pursue a certificate of delay, it is too late for the respondent to visit blame on the registry for his own misapprehension of the Rules. The record of appeal was thus inexcusably filed out of time, without leave of Court and premised on a defective Notice of Appeal.”

25. While the appellate rules cited in the above case only apply to appeals that lie to the Court of Appeal, the subordinate Courts can also issue certificates of delay under Section 79G of the Civil Procedure Act. The Respondent contends that there is no record that the advocate for the Applicants were following up on the typing of proceedings and why they were delayed. It is noted that the Applicants do state in the supporting affidavit that they followed up on the proceedings but the same were not typed in good time. However, the Applicants did not give any reason for not obtaining a certificate of delay. Following the above cited case of Mistry Premji Ganji (Investments) Limited (supra) the logical conclusion would be that application for extension of time would be denied for it would be too late for the Applicant to lay blame on the court registry for not typing proceedings in time and their own misapprehension of the rules on certificate of delay.

26. However, courts have held that litigants who wish to ventilate their cases should be given the opportunity to do so. In the case of: Stecol Corporation Limited v Susan Awuor Mudemba [2021] eKLR the Court held that:“The ultimate goal and purpose of the justice system is to hear and determine disputes fully. It follows that no person who has approached the court seeking an opportunity to ventilate their grievances fully should be locked out. In the instant case, the applicant filed the appeal one day late and has approached this court for extension of time as stipulated in Section 79G of the Civil Procedure Act, the proviso thereof. Reasons or no reasons for that delay, it is before the court seeking to be granted a chance to agitate its appeal challenging the judgment of the lower court.There is no evidence that the application is an afterthought or how the same is intended to abuse court process. Further, it is not uncommon for clients to instruct their counsel who procrastinate on filing court processes and only wake up when time for such filing has elapsed. Courts have over time excused parties where such delay is not inordinate as is in this case and even in cases where there is inordinate delay, depending on the circumstances of each case and reasons for the delay, courts have accorded parties an opportunity to be heard on appeal. Furthermore, there is no evidence to demonstrate what prejudice the Respondent will suffer if the applicant is granted extension of time.”

27. Similarly, in Kamlesh Mansukhalal Damji Pattni v Director Of Public Prosecutions & 3 others [2015] eKLRarticulated that-“Judicial Officers are also State officers, and consequently are enjoined by Article 10 of the Constitution to adhere to national values and principles of governance which require them whenever applying or interpreting the Constitution or interpreting the law to ensure, inter alia, that the rule of law, human dignity and human rights and equity are upheld. For these reasons, decisions of the Courts must be redolent of fairness and reflect the best interest of the people whom the law is intended to serve. ……It suffices to comment that a court of law should be hesitant at closing the door to the corridors of justice prior to a litigant being heard on his complaint. So far the applicant did not have a chance to file a defence. He sought to set aside that default judgment and that application was dismissed on a date he contends the same was not due for hearing and when he had no notice.”

28. The Court has considered Article 159(2)(d) of the Constitution of Kenya [2010] which provides for administration of justice without undue regard to procedural technicalities and further the overriding objective of the court as established by Sections 1A of the Civil Procedure Act to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. Section 3A also provides for the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

29. The Court has considered all the above cited authorities on considerations for grant of an order of extension of time for filing an appeal to this court. The Court has also considered the fact that immediately after delivery of the judgement by the trial court the Applicant’s Counsel made an oral application for certified copies of proceedings and judgement. On the same date they made a written application for the same. It can thus be concluded that from the outset the Applicants were not satisfied with the judgement of the court and immediately made moves towards obtaining the relevant documents to facilitate the commencement of an appeal. It is not clear why the Applicants did not utilize the provisions of Section 79G of the Civil Procedure Act which excludes from the computed time of 30 days for filing an appeal such period 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. A certificate of delay envisaged by that section would have saved the Applicant the trouble of making the present application. Be that as it may, the Court finds that the reason given for the delay is excusable and may not have been within the Applicants control.

30. Further, it is the courts view that the period of seven months which is said to have been taken up by the processing of proceedings and judgement is not inordinate in the circumstances of this case especially considering the imperatives of Article 159 2(d) of the Constitution of Kenya 2010 and Sections 3 of the Environment and Land Court Act which provides for the overriding objective of the Court which is“The principal objective of this Act is to enable the Court to facilitate the just, expeditious, proportionate and accessible resolution of disputes governed by this Act.”

31. The Applicants also seek stay of execution of the Judgment of the Magistrate’s Court at Kyuso by Hon. John Aringo-SRM dated 27th July 2022 in Kyuso ELC Case 11 of 2019. The Respondents have contended that the Applicants had the opportunity to apply for stay of execution at the trial court as provided above. The record shows that counsel for the Applicants herein applied for stay of execution on the judgment date but the Court’s decision on the matter is not on record.

32. Regarding stay of execution, Order 42 Rule 6(2) provides that:“No order for stay of execution shall be made under subrule (1) 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; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.(3)Notwithstanding anything contained in subrule (2), the court shall have power without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.”

33. The case of HGE v SM [2020] eKLR quoted several authorities comprehensively regarding the application of the above cited Order 42 Rule 6 (2) of the Civil Procedure Rules and the principles governing grant or refusal of stay of execution in summary that the grant of stay of execution is discretionary and the conditions to be met as set out under Order 42 Rule 6 (2) above:“An applicant for stay of execution of a decree or order pending appeal 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. See Antoine Ndiaye v African Virtual University [2015] eKLR.In Butt v Rent Restriction Tribunal [1979], the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that the power of the court to grant or refuse an application for a stay of execution is a discretionary, and the discretion should be exercised in such a way as not to prevent an appeal. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings. Finally, the court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.”As to what substantial loss is, it was observed in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, that:“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process. The 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 ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”

34. The purpose of stay orders is to preserve the subject matter of the appeal so as to not render it nugatory. However, the court should weigh this right against the rights of a successful litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs and a balance of the interests of the Appellant and the successful litigant must be found. This position was reiterated by the court in RWW v EKW [2019] eKLR, where the court stated as above and added that:“The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”

35. The court notes that the substantive order that was issued by the Trial Court is contained in the last part of the judgement where it stated; “In the circumstances, a permanent injunction do issue against the Defendant in terms of prayer 3 of the amended Plaint dated 23rd February 2021. The Plaintiffs will also get costs of the suit.” The Applicant did not attach a copy of the amended plaint or the decree and the Court is not in a position to confirm the exact terms of the order. More importantly the Applicant did not complain or specifically show how execution of the order of permanent injunction affected them or that substantial loss will result if execution proceeds.

36. The Applicants seem to be more apprehensive of the process of taxation of the bill of costs filed by the Respondents and which the Applicants claim is likely to be executed against them in person since Kwa Kiluvi Wetland maintenance and Reservation Committee is not registered.

37. In the current scenario, the Applicants claim the taxation of the Respondents’ bill of costs should not proceed as it will prejudice them. The Deponent indicated that they were sued as officials of an unregistered body which has no funds to pay the amount in the bill of costs. They claim that they cannot be held personally responsible for the committees’ debt and that for that reason they will suffer irreparable loss. However, it is noted that the bill of costs has not been taxed and the amount of costs ascertained. At this point in time there is no known amount of costs capable of execution and on which the Applicants can claim they will suffer irreparable loss. The Applicants have also not indicated what prejudice they stand to suffer if the taxation of the Bill of Costs proceeds and neither have they offered any security for any taxed costs. In any event absence of the taxed costs there is no basis upon which this court can order security to be provided by the Applicants for the due performance of their obligations under the decree.

38. In the Courts view, what the Applicant seeks is more of stay of proceedings of taxation of the Bill of Costs instead of stay of execution. The Court is not convinced that the application for stay of execution has merit. The Court is pursuaded by the arguments in the case of Deposit Protection Fund v Rosaline Njeri Macharia [2006] eKLR, where the Court while dealing with an application of stay of taxation proceedings, observed as follows:“Going back to the 2nd defendant’s arguments, I note them as saying that if the court did not grant an order for stay of the proceedings, the applicant would not suffer substantial loss, on account of the taxation of the defendants’ Bills of Costs. When faced with those submissions, the applicant did not tell the court how the taxation of the defendants’ Bill of Costs would cause them substantial loss. To my mind, the taxation of a Bill of Costs cannot occasion any loss to the person against whom it is taxed. Therefore, the issue of taxation causing substantial loss does not even arise. The only effect of taxing a Bill of Costs is the ascertainment of the quantum of costs payable by one person to another. Thereafter, the party whose costs had been ascertained could take out execution proceedings. The applicant did not, in my considered view, make out a case for stay of proceedings, and in particular a stay of the taxation of the defendants’ Bills of Costs. Furthermore, if the learned taxing officer were to proceed to tax the defendants’ Bills of Costs, the sums would be ascertained, and that would be the foundation upon which this court could base the size of the security which the applicant would need to raise, if the court did order that there be a stay of execution.”

39. For the foregoing reasons the Court finds that the application dated 17th of February 2023 partly succeeds and the following orders are made;1. Leave be and is hereby granted to the Applicants/Intended Appellants to appeal out of time against the Judgment of the Honourable Magistrate John Aringo, Senior Resident Magistrate in Kyuso M.ELC Number 11 of 2019 and Judgment delivered on 27th July 2022. 2.The Appeal to be filed within 7 days from the date hereof3. Prayer 3 is hereby dismissed4. Costs of this application to be borne by the Applicant and paid to the Respondents.

DELIVERED, DATED AND SIGNED AT KITUI THIS 18TH DAY OF MAY, 2023. HON. L. G. KIMANIENVIRONMENT AND LAND COURT JUDGE - KITUIRuling read in open court and virtually in the presence of-Musyoki Court AssistantMwikali for the ApplicantsFatma holding brief for M/s Mutemi for the Respondents