[2022] KEHC 10144 (KLR)

Kionga Investments Company & another v Kimani (Civil Appeal E056 of 2022) [2022] KEHC 10144 (KLR) (Civ) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10144 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E056 of 2022

JK Sergon, J

July 15, 2022

Between

Kionga Investments Company

1st Applicant

Jane Njoki Gichure

2nd Applicant

and

Derrick James Kimani

Respondent

Ruling

1. This ruling is predicated on the notice of motion dated February 11, 2022 taken out by the 1st and 2nd appellants/ applicants and supported by the grounds set out on its body and the facts stated in the affidavit of the 2nd applicant.

2. The applicants sought for an order for leave to appeal out of time against the ruling delivered on November 12, 2021 in Business Premises Rent Tribunal Case No. 986 of 2019 and a further order for a stay of execution of the aforementioned ruling pending the hearing and determination of the appeal.

3. The applicants also sought for an order that the memorandum of appeal filed and served be deemed to have been filed and served within time.

4. The plaintiff/respondent opposed the motion by filing the grounds of opposition dated May 12, 2022 and put forward the following grounds:a)That the appellants’ application for leave to appeal does not meet the threshold established in Abdul Aziz Ngoma v Mungai Mathayo(1976) Kenya LR 61,62 and is an abuse of court process.b)That the appellants’ application fails to demonstrate any sufficient cause or even explain away the inordinate delay and it only serves to establish indolence on the part of the appellants which cannot be countenanced by this honourable court.c)That the appellants’ application is a device meant to frustrate,delay and derail the realization of the fruits of judgment by the respondent noting that the appellants have not complied with the ruling of the Business Premises Rent Tribunal dated 12. 11. 21 as to the refund of the Kshs.500,000/= to the respondent/tenant.d)That the appellants’ application as drawn is bad in law and totally devoid of merit.

5. The respondent further opposed the application by putting in a replying affidavit sworn on 12th May, 2022, to oppose the motion.

6. The parties were directed to file and exchange written submissions on the motion. This court notes that at the time of writing this ruling, none of the parties had filed submissions, so the court decided to consider the application and responses

7. I have considered the grounds laid out on the body of the Motion; the facts deponed in the affidavits supporting and opposing the motion; and the grounds of opposition.

8. The orders being sought in the motion are two-fold: first is the order seeking for enlargement of time to appeal and for leave to appeal out of time against the impugned judgment and decree.

9. Section 79G of the Civil Procedure Act stipulates that an appeal against the decision of a subordinate court shall be lodged within 30 days from the date of the decree or the order being appealed against. The provision further stipulates that an appeal can be admitted out of time where sufficient cause has been shown.

10. Moreover, under the provisions of section 95 of the Civil Procedure Act and order 50, rule 5 of the Civil Procedure Rules, the courts have power to enlarge the time required for the performance of any act under the Rules even where such time has expired.

11. In the case of Thuita Mwangi v Kenya Airways Ltd[2003] eKLR the Court of Appeal illustrated the conditions to be met in deciding whether to extend the period for filing an appeal out of time and which I shall address hereunder.

12. Under the first condition touching on length of delay, while it is apparent from the record that no copy of the impugned ruling was availed to this court, the parties are in agreement that the impugned ruling was delivered on November 12, 2021which is close to three (3) months prior to the filing of the motion. In my mind, while there has clearly been a delay in filing the motion, I do not find the delay to be inordinate.

13. Concerning the reasons for the delay, the applicants aver that the ruling was delivered in the absence of parties and the applicants only came to know about it when the respondent threatened to terminate the tenancy agreement sometimes in February 2022. The respondent argued in his grounds that the applicants have failed to demonstrate any sufficient cause or even explain away the inordinate delay.

14. Upon considering the explanation given by the applicants, I find the same to be reasonable in the circumstances.

15. As relates to the condition on whether or not an arguable appeal exists, it is the applicants’ assertion on the one hand that the intended appeal has a high chance of success and the respondent on the other hand contends that the appeal has no chances of success.

16. Upon my perusal of the grounds of appeal raised in the draft memorandum of appeal annexed to the Motion, I note that the appeal is challenging the finding of the trial court on facts governing a valid agreement as well as facts and contents of the parties Tenancy agreement. I am therefore satisfied that the applicants have demonstrated arguable points of law and fact in their appeal.

17. Upon my perusal of the grounds of appeal raised in the draft memorandum of appeal annexed to the Motion, I find that the appeal is primarily against the decision of the tribunal to misapprehending the principles governing a valid agreement. The applicants are equally arguing that the tribunal failed to appreciate the overwhelming facts and contents of the tenancy agreement. Taking these factors into account, I am satisfied that the applicants have established arguable points of law and fact in their draft memorandum of appeal.

18. The second prayer is for stay of execution of the decree pending appeal, for which the guiding provision is order 42, rule 6(2) of theCivil Procedure Ruleswhich sets out the conditions to be satisfied for such an order to be granted.

19. The first condition being that the application must have been brought without unreasonable delay has already been addressed hereinabove.

20. The second condition touches on substantial loss to be suffered by an applicants.

21. The applicants on their part stated that they will be exposed to execution of the order unless a stay is granted pending the appeal.

22. In the Court of Appeal case of Butt v Rent Restriction Tribunal [1979] eKLR when it held that in considering an application for a stay of execution, the courts ought to exercise their discretion in a manner that will not render the appeal in question nugatory, if successful.

23. I am alive to the reality that unless the applicants are granted an opportunity to defend its case, they stand to be condemned unheard, thereby undermining the dictates of substantive justice and violating the applicants’ constitutional right to be heard on its defence in the dispute before the same is conclusively determined.

24. From the foregoing, I am convinced that the applicants have reasonably shown the substantial loss they may suffer should the order for a stay of execution be denied.

25. Under the final condition which is the provision of security for the due performance of the decree or order, the applicants have not offered any form of security. In retort, the respondent stated that the applicants have not offered any security such as the depositing of the deposit in court.

26. In making an order for the provision of security, this court must balance the interest of the parties. In the present instance, it is noteworthy that the respondent has not shown any pressing need that would require payment of part of the decretal amount to him at this stage.

27. In the end, the motion datedFebruary 11, 2022is found to be meritorious and it is allowed, therefore giving rise to a grant of the following orders:a)The applicants are granted leave of 14 days from today’s date to file an appeal out of time.b)There shall be an order for stay of execution of the ruling delivered on November 12, 2021pending the hearing and determination of the intended appeal on the condition that the applicants deposit the sum of Kshs.500,000/= in an interest earning account in the joint names of the advocates or firms of advocates within 45 days from the date of this ruling in default of which the stay order shall lapse.c)Costs of the Motion shall abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 15TH DAY OF JULY, 2022. ………………………J. K. SERGONJUDGEIn the presence of:……………………………. for the 1st Appellant.................................... for the 2nd Appellant……………………………. for the Respondent