[2022] KEHC 10132 (KLR)

Likoko & 2 others v Muriuki (Civil Appeal E449 of 2021) [2022] KEHC 10132 (KLR) (Civ) (1 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10132 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E449 of 2021

JK Sergon, J

July 1, 2022

Between

Victor Siaya Likoko

1st Applicant

Lydia Wambui Ndungu

2nd Applicant

Gilbert Maiso Ogeto

3rd Applicant

and

Dennis Maina Muriuki

Respondent

Ruling

1. On July 23, 2021 this court granted the appellants/ applicants an order for stay of execution of the decree in Nairobi C.M.C.C. No. 11047 of 2018 pending appeal on condition that the applicant deposits the entire decretal sum in an interest earning account in the joint names of the advocates.

2. The appellants/ applicants have now taken out the motion dated October 7, 2021in which it sought for the following orders:i.Spent.ii.Spent.iii.That the Honourable Court be pleased upon reinstatement, to extend and or grant interim orders of stay of execution of the judgment /decree issued by the Honourable Court on July 23, 2021 pending hearing and determination of the appeal.iv.That upon reinstatement and enlargement of time that the Honourable Court do vary the orders issued on July 23, 2021to allow the applicants provide a bank guarantee for the decretal amount in place of opening a joint interest earning account.v.That this application be heard interparties on such date and time as this Honourable Court may direct.vi.That this Honourable Court be pleased to issue any other orders that it may deem fit, just and expedient in the interests of justice.vii.That costs of this application be in cause.

3. The motion is supported by the affidavit of Purity Waikwa, advocate to the appellants. When served with the motion, the respondent filed the replying affidavit of Macharia Waiganjo to oppose the application.

4. When the motion came up for interparties hearing, learned counsels made oral submissions. I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the motion plus the rival oral submissions.

5. It is the submission of Ms. Gulenywa, learned advocate for the appellants/applicants averred that it has been difficult opening a joint account and that the court should vary the place of deposit so that the litigant does not suffer for the mistakes of the counsel.

6. The applicants aver that no prejudice shall be suffered by the respondent if the orders sought herein are granted and if any can be compensated by an award of costs.

7. The applicants further aver that they are apprehensive if the orders sought herein are not granted, the respondent may levy execution and the applicants will be unable to recover the decretal sum awarded herein from the respondent.

8. The applicants state that they are willing to provide a bank guarantee for the entire decretal amount to enable the applicants pursue their appeal.

9. Mr. Macharia, learned advocate for the respondent strenuously opposed the application arguing that they were never given the account opening documents until the month of August 2021 of which they quickly acted and sent the documents on August 19, 2021.

10. The respondent stated that he made various calls seeking to know the progress of opening the account and each time was advised that he would be informed as soon as the account was opened.

11. The learned advocate further pointed out that they noted that the applicants were unresponsive and had breached the express terms of the order given, they applied for the decree on September 24, 2021to enable then execute the decree.

12. It was further pointed out that from the chronology of events that this application is not brought in good faith and the applicants have not come to court with clean hands.

13. It is clear from the provisions of Order 45 rule 1 (1) (b) of the Civil Procedure Rules that a party may apply for review upon the discovery of a new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made or on account of some mistake an error apparent on the face of the record or any other sufficient reason.

14. On inspection of the file what comes out is that it has become difficult for the parties to open a joint account. It is the applicants’ argument that efforts to open a joint interest account have been frustrated by the respondent’s counsel who deliberately refused to furnish the applicants with all the documents required to open the joint account.

15. On the other hand, the respondent argued that he had sent the applicants duly executed forms to open a joint account, they even went an extra mile of doing letters to the applicants, and even sent the necessary documents on August 19, 2021 but he has never heard from the applicants.

16. The applicants stated that they are unable to comply with the stay conditions on time due to the frustrations by the respondent’s counsel and that they are willing to provide a bank guarantee for the entire decretal amount to enable them pursue their appeal.

17. In the case of Essar Telcom Kenya Limited v Joseph Odongo Okumu [2016] eKLR the plaintiff was directed to furnish security for costs in the sum of Kshs.2,000,000 within 21 days from the date of judgement but failed to do so. The court allowed the Plaintiff to furnish the security a year later on being satisfied that the plaintiff had a valid reason and had even deposited the security out of time. The same view was adopted in the case of Compliant International SecurityLtd& another v Nicodemus Mulwa Muli [2019] eKLR. In this case the court expressed itself as follows in an application seeking extension of time way after the set timelines.“…If the applicants are not given an opportunity to deposit the decretal sums as ordered by the trial court then the appeal will be rendered nugatory and will only be there for academic purposes. There will be no prejudice suffered by the respondent if time is extended in order for the deposit to be made as had been directed by the trial court."

18. On the foregoing, it is my considered view that extension of time is an equitable remedy granted to deserving party at the discretion of the court. Whether the court should exercise that discretion is to be considered on case to case basis. However, the party seeking the extension of time bears the onus to prove to the satisfaction of the court the existence of extenuating circumstances which delayed compliance of the court orders. The applicant must show sufficient reason for the exercise of court’s discretion in its favour. I will now consider whether the explanation tendered by the applicants.

19. However, the applicants have not shown any effort made to obtain the bank guarantee. That, notwithstanding the appellants/applicants do not state when they will be able or willing to comply with the conditions of stay by providing the bank guarantee. The court cannot grant unlimited extension of time for the applicants to comply. It is an old adage that, justice delayed is justice denied and that justice is weighed on a scale that must balance. Therefore, as much as the Court is obligated to promote the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010 and uphold substantive justice against technicalities, the law must protect both the Applicants and the respondent for justice to be seen to have been done.

20. In the end, I find the motion dated October 7, 2021 to be meritorious. The same is allowed with costs abiding the outcome of the appeal. For the avoidance of doubt the appellants/applicants should provide a bank guarantee for a year within a period of 14 days from the date hereof, failure to which the motion will be treated as having been dismissed.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF JULY, 2022. J. K. SERGONJUDGEIn the presence of:...............for the 1st Appellant...............for the 2nd Appellant...............for the 3rd Appellant..................for the Respondent