[2023] KEHC 25228 (KLR)

Lamu Isiolo Road Construction Ltd & another v Strat Logistics Company Ltd & another (Civil Appeal E087 of 2023) [2023] KEHC 25228 (KLR) (Civ) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25228 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E087 of 2023

JN Mulwa, J

November 9, 2023

Between

Lamu Isiolo Road Construction Ltd

1st Applicant

Samuel Koskei Too

2nd Applicant

and

Strat Logistics Company Ltd

1st Respondent

Moses Ireri Murithi

2nd Respondent

Ruling

1. There are two motions before the court for determination dated 5/01/2023 and 9/03/2023, both by the applicant.

2. By the motion dated 5/01/2023, the Applicant sought orders for leave to lodge on appeal out of time against the judgment of the trial court on the 30/05/2022 in Commsu No. 393/2019 as well as an order of stay of execution pending the hearing and determination of the intended appeal. The impugned judgment is for Kshs. 6,279,707/= and soon thereafter the applicant filed a Memorandum of Appeal but in the wrong court registry. It is dated 28/06/2023 and the appellant seeks an order setting aside the judgment of the trial court.

3. On 15/02/2023, the court granted the applicant a temporary and conditional stay of execution orders upon depositing Kshs. 2,000,000/= into court within 30 days which orders were not complied with. Before the lapse of the stay orders, the applicant filed the second application dated 9/03/2023 whereof the applicant sought that the court do vacate the orders issued on 15/02/2023.

4. The reasons for the application are stated that the court made the orders in absence of material facts that the respondent failed to disclose that there was a case pending at Malindi HCRJ/E003/2021 between the same parties hence the said application amounts to subjudice – and that in the said court(Malindi) the lower court erroneously ruled in favour of the respondent.

5. The appellant contended that depositing the security would prejudice the respondent as the Malindi case would shed light to the matter, and if the court allows the appeal to be filed out of time, and stay orders extended, it will significantly aid the court to reach a fair determination for both parties.

6. In opposition to the two applications, a Replying Affidavit was sworn by Vincent Kiptoon, Advocate. IT is deponed that the judgment sum is Kshs. 4,417,000/= plus costs and interest upon which a decree for execution was obtained; and attainment of the applicant’s moveable assets. It is dated 17/11/2022 and eventually the application was dismissed. It is further deponed that the applicants, without informing the respondent, and before the ruling in the application moved to file the notice of motion dated 5/01/2023 and obtained the stay orders aforestated and when the lower court ruling was dismissed, they served this court orders of stay of execution, which is a clear abuse of court process.

7. Additionally, it is stated that the applicants moved to execute the decree when the stay orders lapsed, attained but recovered only a small part of the decretal sum, and is still desirous of executing for the balance.The respondent submits that the Respondents actions are a ploy to deny them enjoyment of their judgment fruits; and finally that non-disclosure of the other cases and factors to the court are matters that were in the knowledge of the applicants and therefore was made in bad faith; and therefore urges the court to deny the applicants the orders sought.

8. I have considered the parties arguments before me and their respective pleadings.

9. I have not found any plausible reasons on to why the intended appeal was not filed within time. What I see is mischief by the applicants, to mislead the court by non-disclosure of material facts when it filed the 1st application dated 5/01/2023, only meant to obtain stay orders ex-parte, and which they, in my view, intended not to comply with, but prolong and delay execution of the decree of the trial court.

10. By the application dated 9/03/2023, the applicants seek orders of review and vacation of the court orders issued on 15/02/2023. By this time, the exparte stay orders had lapsed and therefore the court cannot extend non-existent orders. Essentially, there are no stay of execution orders in place.

11. On leave to file appeal out of time, the delay from date of delivery of judgment on 30/05/2022 to date of application on 5/01/2023, being close to eight (8) months has not been sufficiently explained; as filing the Memorandum of Appeal in the wrong court is not a matter to blame the court registry on.

12. The applicant ought to take the blame for its failures in place of blaming an innocent court registry, as rightfully submitted by the Respondent.

13. However, despite the above noncompliance with court orders and blame game, the applicant’s interests must be balanced against rightful interests of the Decree holder, and the right to be heard on appeal unless there are serious impediments to such grant Shabbir Ali Jusab v Anaar Osman Gamrai & Another 2014. Section 79G of the Civil Procedure Act at its proviso allows extension of time to file appeal out of time upon sufficient reasons being provided – Thuita Mwangi v Kenya Airways Ltd [2003]eKLR.

14. It is trite that the court has unfettered discretion to extend time, though it is not a right to a party, but that party must lay concrete rounds but again, each case must be considered individually - See Mombasa County Government v Kenya Ferry Services &another [2019] eKLR.

15. I have taken into account the foregoing, and the fact that the applicant had indeed filed a Memorandum of Appeal within time but in the wrong court.

16. I therefore proceed to exercise my discretion and grant leave to the applicants to lodge an Appeal out of time, but deny to extend stay of execution orders dated 15/2/2023 for reasons stated at paragraph 10 above.

17. I therefore proceed to exercise my discretion and grant leave to the applicants to lodge appeal out of time subject to the following:a.The memorandum of appeal shall be filed and served within 7 days.b.The Record of Appeal shall be filed and served within 60 days.c.Mention for directions shall be taken on the 29/02/2024. d.Costs of the 2 applications shall be borne by the Applicants.Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 9TH DAY OF NOVEMBER, 2023. JANET MULWAJUDGE