[2017] KEHC 2954 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

MISC. CIVIL NO. 2 OF 2017

LUCY WANJIKU MBUGUA

SERAH WAMBUI NJUGUNA

JAMES KIARIE MBUGUA

DANCAN GICHURU NJUGUNA……………....…………APPELLANTS

VERSUS

MARY WANJIRU NDICHU……………………………..RESPONDENT

RULING

1. This is an Application by way of Notice of Motion dated 20th February, 2017 brought under Order 50 Rule 6 and Order 42 Rule 1 of the Civil Procedure Rules, Section 3 and 3A of the Civil Procedure Act and all other enabling Acts and Rules seeking orders that:

a) Spent

b) THAT leave be granted to the applicants to file appeal out of time in Githunguri Succession Cause No. 1 of 2014 in the matter of the estate of James Kiarii Karanga (deceased) and that the Record of Appeal and Memorandum of Appeal annexed hereto be admitted and be deemed filed.

c) THAT a stay of execution of the Certificate of Confirmation of Grant issued in Githunguri SPM Succession Cause No. 1 of 2014 in the matter of the estate of James Kiarii Karanga (deceased) be granted until further orders of this Honourable Court.

d) THAT costs of this Application be provided for.

2. The Application is based on grounds stated on the face of the Notice of Motion and supported by the affidavit of Lucy Wanjiku Mbugua, one of the Applicants. The facts can be stated briefly as follows.

3. The Applicants are claimed beneficiaries to the estate of James Kiarii Karanga (Deceased). They were dissatisfied with the decision of the Learned Trial Magistrate in Githunguri Principal Magistrate’s Succession Cause No. 1 of 2014 with respect to the distribution of the estate of the Deceased.That decision was given on 03/10/2016. On 11/10/2016, the Applicants, who were unrepresented, applied for certified copies of the proceedings being intent on appealing against the decision.

4. The Applicants, being unschooled in law and being legally illiterate, assumed that you needed certified copies of the proceedings before filing an appeal. Hence, it was only after 21/11/2016 when they thought they could take the next step to file an appeal. This was because on this date, they received the certified copies of the proceedings together with a certificate of delay from the Magistrate’s Court.

5. At this point, the Applicants were busy looking for a lawyer who would accept to represent them on appeal on a pro bono basis. They finally approached their current lawyers who apparently agreed to represent them. Armed with the certified proceedings, the lawyers attempted to file a Memorandum of Appeal on 14/12/2016 but they were sent away by the registry staff. The Registry staff informed them that the appeal was already time-barred since the ruling had been delivered on 03/10/2016. The advice at the registry was that they needed to first approach the Court for extension of time.

6. Eventually, the Applicants, through their advocates filed the present Application. According to them, the delay was caused by the delay to be issued with the lower court documents and the High Court registry refusing to admit their appeal while on time.

7. The Applicants argue that the Memorandum of Appeal raises serious grounds with good chances of success.

8. The Respondent opposed the application through her counsel by filing her grounds of opposition dated 21/02/2017. Some of the grounds stated were that there was inordinate delay in bringing the Application and that it was an afterthought. The Respondent further argues that the Applicants ought to have filed their Memorandum of Appeal as they waited for the typed proceedings. She also argues that the fact that there is no draft Memorandum ofAppeal filed is an indication that the Applicants do not have a strong case/appeal.

9. The Court directed that the Application be canvassed by way of written submissions. The Applicants through their advocate submitted the facts as deboned by Lucy Wanjiku Mbugua. In addition counsel urged the court to take judicial notice that the applicant is an old woman of straw who relied on pro-bono services which are rare to find.

10. In the upshot counsel submitted that the Applicant has demonstrated herself as being serious in pursuing the appeal and that the delay was not inordinate but was caused by the delay in obtaining certified documents at the lower court.

11. In regard to extension of time, counsel relied on Order 50 Rule 6 of the Civil Procedure Rules. Counsel as well quoted two cases to highlight the principles that guide courts in exercising its discretion. These are: Geoffrey Njoroge Kinyanjui v Nyautha Gichungu Civil Appeal No. 19 of 1997andFredrick J.P. Arodi & Another v. I.W.Waweru Civil Application No. 127 of 1998.

12. Lastly, the Applicants’ counsel submitted that the conditions to be satisfied for grant of stay of execution are an arguable appeal and negation of success. He relied upon the case of KimaniWanyoike v Electoral Commission and Another Civil Appeal No. 213 of 1995

13. He submitted that in the instant case the memorandum of appeal filed proves that there is an arguable case. As regards negation, if stay is not granted, the estate would be in the hands of other people by the time the appeal is concluded and successful.

14. Consequently, the respondent’s counsel filed their submissions. He relied on the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others, SC Appl. 16/2014which case lays down the principles that a court should consider in exercise of discretion to extend time.

15. Counsel submitted that the applicants did not deserve the extension of time as they have failed to prove that they were too poor to afford legal services. Also that the court should not be swayed by applicants allegations of old age, lack of knowledge and financial incapacity.

16. Finally it was submitted that it is not a requirement for the Memorandum of Appeal to be accompanied by certified copies of the judgment and proceedings. Additionally, the Respondent will be prejudiced if the stay order is granted as she relies on the property for her upkeep.

17. Section 79G of the Civil Procedure Act is the operative part in answering the question whether the prayer to enlarge time to file the appeal is merited. The section provides as follows:

Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the dateof 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 good and sufficient cause for not filing the appeal in time.

18. Our case law has now provided guidelines on what will be considered “good cause” for purposes of permitting a party who is aggrieved by a lower court judgment or ruling to file an appeal out of time. The most important consideration is for the Court to advert its mind to the fact that the power to grant leave extending the period of filing an appeal out of the statutory period is discretionary and must be granted on a case by case basis. While not a right, it must be exercised judiciously and only after a party seeking the exercise of the discretion places before the Court sufficient material to persuade the Court that the discretion should be exercised on its behalf and in their favour.

19. Our case law has developed a number of factors which aid our Courts in exercising the discretion whether to extend time to file and an appeal out of time. Some of these factors were suggested by the Court of Appeal in Mwangi v Kenya Airways [2003] KLR. They include the following:

a. The period of delay;

b. The reason for the delay;

c. The arguability of the appeal; argue

d. The degree of prejudice which could be suffered by the Respondent is the extension is granted;

e. The importance of compliance with time limits to the particular litigation or issue; and

f. The effect if any on the administration of justice or public interest if any is involved.

20. Looking at all these factors in the instant case, I am persuaded that that the Applicant has made out a strong case for extension of time. First, it is clear that she was clear about her intention to pursue the appeal despite being a pro se litigant by applying for certified copies of the proceedings barely a week after the judgment was delivered. Second, there is evidence that she tried to recruit a lawyer on a pro bono basis to help her file the appeal. Third, the delay in filing the appeal cannot be said to be inordinate. It is clear that the Applicants have been engaged from the date the judgment was delivered and sought to perfect their appeal. Fourth, I have found nothing objectionable or in bad faith in the conduct of the Applicants in this case. In particular, I have found no evidence that they negligently or knowingly delayed acting. Fifthly, I have not found any particular prejudice which would be suffered by the Respondent if this Application for extension of time is granted.

21. Sixthly, as I will briefly analyse below, I have concluded that the Applicants’ appeal is certainly arguable. Of course, as I state below, all the Applicants have to show at this stage its arguability – not high probability of success.

22. Lastly, this is a matter involving succession to land – an obviously emotive and important issue in our country and particularly in this county. Courts have a policy preference to determine cases on their merits wherever possible. Indeed, the Applicant may as well have cited the Ugandan Supreme Court in Banco Arabe Espanol V Bank of Uganda [1999] 2 EA 22where it remarked that:

The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that errors, lapses should not necessarily debar a litigant from the pursuant of his rights and unless lack of adherence to rules renders the appeal process difficult and inoperative. It should seem that the main purpose of litigation, namely, the hearing and determination of disputes should be fostered rather than hindered.

23. Given all these considerations, I am persuaded that it is fair and just to exercise the Court’s discretion to extend time for the Applicants to file their Memorandum of Appeal in this instance.

24. Having determined that the Court will exercise its discretion in favour of the Applicants, then the Court must answer the next question: should it further exercise its discretion to allow for stay of execution of the judgment and decree of the lower court?

25. The Application for stay of judgment is primarily governed by the terms of Order 42 Rule 6 of the Civil Procedure Rules. The conditions to be met by an Applicant in order to be entitled to an order for stay are encapsuled in that Rule in the following terms:

6. (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.

(2) No order for stay of execution shall be made under sub-rule (1) unless—

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

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.

26. The law regarding the grant of stay of execution is well established in Kenya. Among the legion of authoritative cases establishing it, the judges of the Court of Appeal were both concise and emphatic in Rhoda Mukuma v John Abuoga:

It was laid down in M M Butt v The Rent Restriction Tribunal, Civil Application No Nai 6 of 1979, (followingWilson v Church (No 2) (1879) 12 Ch 454 at p 488) that in the case of a party appealing, exercising his undoubted right of appeal, the court ought to see that the appeal is not rendered nugatory. It should therefore preserve the status quo until the appeal is heard.

Granting a stay in the High Court is governed byOrder XLI rule 4(2), the questions to be decided being

– (a) whether substantial loss may result unless the stay is granted and the application is made without delay; and (b) the applicant has given security.

27. Hence, under our established jurisprudence, to be successful in an application for stay, an Applicant has to satisfy a four-part test. He must demonstrate that:

i. The appeal he has filed is arguable;

ii.He is likely to suffer substantial loss unless the order is made. Differently put, he must demonstrate that the appeal will be rendered nugatory if the stay is not granted;

iii. The application was made without unreasonable delay; and

iv. He has given or is willing to give such security as the court may order for the due performance of the decree which may ultimately be binding on him.

28. I have perused the Memorandum of Appeal filed in this case. I am unable to say that the grounds of appeal enumerated are in-arguable. As I stated above to earn a stay of execution, one is not required to persuade the Appellate court that the intended or filed appeal has a high probability of success. All one is required to demonstrate is the arguability of the appeal: a demonstration that the Appellant has plausible and conceivably persuasive grounds of either facts or law to overturn the original verdict. The Applicant has easily met that standard.

29. But what is the substantial loss that the Appellant is likely to suffer if the order is not granted? As discussed above, this is a succession matter where the primary asset is land. If the judgment is executed and land is subdivided as ordered by the lower Court, there is likelihood that title to the land might pass to Third Parties making it impossible for the Applicants to recover the land. Additionally, the Applicants claim to be in possession of the land and execution will entail eviction.

30. I have already concluded above that this Application was brought without undue delay.

31. Finally, this is not an appropriate case for demanding security for interests: if the Respondent succeeds on appeal, an appropriatedecree will be for distribution of the Deceased’s estate as per the lower Court’s decision and an order for vacant possession and/or eviction if necessary.

32. Consequently, I find and hold that the Applicants have satisfied the conditions for the grant of stay of execution.

D.DISPOSAL AND ORDERS

33. In order to balance the rights of both the Applicants and the Respondent, I will condition the prayers granted here with the adherence by the Applicants of strict timelines as under:

a. The Applicants shall file and serve a Memorandum of Appeal within seven days of the date hereof.

b. The Applicants shall file and serve the Record of Appeal within fourteen days from the date hereof.

c. The Applicants shall write to the Deputy Registrar requesting him to place the Appeal before the Judge for directions within fourteen days of the filing of the Record of Appeal.

d. There shall be a stay of execution of the Certificate of Confirmation of Grant issued in Githunguri SPM Succession Cause No. 1 of 2014 in the matter of the estate of James Kiarii Karanga (deceased) until the hearing and determination of the intended appeal.

e. The costs of this Application will be in the cause.

34. The failure to abide by any of the conditions above will immediately nullify the stay issued herein and execution may proceed. If the conditions are met, the stay shall be valid during the pendency of the appeal

35. Orders accordingly.

Dated and delivered at Kiambu this 5thDay of October, 2017.

……………………………………

JOEL NGUGI

JUDGE