[2022] KEHC 10951 (KLR)

Mageto v Moi University (Civil Appeal E40 of 2022) [2022] KEHC 10951 (KLR) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10951 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal E40 of 2022

EKO Ogola, J

July 19, 2022

Between

James Mageto

Applicant

and

Moi University

Respondent

Ruling

1. By a Notice of motion dated 17/3/2022, the Applicant seeks the following orders:1. Spent.2. Spent3. That execution of and all proceedings to enforce the judgment and decree in this matter delivered on 2nd February, 2022 be stayed pending the hearing and determination of the Appeal.4. That this Honourable Court be pleased to enlarge/extend time in which the Plaintiff/Appellant shall file an appeal.5. That the costs of this application be provided for.

2. The application is premised on grounds on the face thereof and it is further supported by the affidavit sworn on 17th March, 2022 by James Mageto the Applicant herein.

Applicant’s Case 3. The Applicant’s case is that he filed a suit against the Respondent at the trial Court for rent arrears. That the Respondent filed a Defence admitting part of the sum claimed and disputed the balance. The Applicant further averred that in the ruling rendered on 16/5/2019, the Court found in his favour for the amount that was admitted. The Applicant contends that the matter then proceeded for hearing of the defence case and subsequently his defence was dismissed and he was condemned him to pay costs. The Applicant further contends that judgment was delivered in his absence electronically on 2/2/2022 without notice to him or to his advocate.

4. The Applicant deposed that the time for appeal has since lapsed and the he is unable to file an appeal unless time is enlarged.

5. The Applicant’s case is that the intended appeal has a high chance of success and that he should not be faulted for the failure to file the appeal in time and that the Respondent herein shall not suffer any loss if the orders sought are granted.

The Respondent’s Case 6. The Respondent vide the Replying Affidavit sworn on 12th April, 2022 by Petrolina C. Chepkwony opposed the Applicant’s application. The Respondent’s case is that the application is an afterthought, having been filed about two months after the judgment was delivered on 2/2/2022 and after the its bill of costs was taxed on 24/2/2022

7. The Respondent contends that the Applicant has not met the threshold to warrant the grant of an order of stay of execution. The Respondent’s main contention is that the Applicant has not demonstrated what substantial loss he is likely to suffer if stay is not granted; the inordinate delay in filing this application and that the Applicant has not provided any form of security for due performance.

8. The Respondent contends that this application is only meant to deny it from enjoying fruits of the judgment.

9. The Respondent’s case is that this instant application is frivolous and is an abuse of Court process and should be dismissed with costs.

10. The Respondent averred that if this Court were to find merit in the Applicant’s application then the Applicant should deposit the entire taxed costs of Kshs. 416,900/= in a joint interest earning account in the names of the Advocates on record.

11. The application was canvassed by way of written submissions. Both parties filed their submissions.

Determination 12. I have considered application, the responses and the submissions filed herein. The Applicant in its application dated 17/3/2022, seeks stay of execution and leave to appeal out of time.

13. The main issues for determination are whether the Applicant deserves the orders for extension of time to file an appeal; and secondly, whether this Court should stay execution of decree in the lower Court.

14. Turning now to the prayer seeking leave to file the memorandum of appeal out of time, the power of the Court to enlarge time for filing an appeal out of time is expressly donated by Section 79G, and generally, by Section 95 of the Civil Procedure Act. The Applicant invoked these provisions. Section 79G of the Civil Procedure Act provides that:“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 good and sufficient cause for not filing the appeal in time.”

15. The principles governing leave to appeal out of time are settled. The successful applicant must demonstrate “good and sufficient cause” for not filing the appeal in time. In Thuita Mwangi v Kenya Airways [2003] KLR, the Court of Appeal while considering Rule 4 of the Court of Appeal Rules which was in pari materia with Section 79G of the Civil Procedure Act, reiterated its decision in Mutiso v Mwangi [1997] KLR 630 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 generally the matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of delay; secondly, the reason for the delay; thirdly (possibly) the chances of appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the Respondent of the application is granted.”

16. The delay in the present matter is about (19) days and the Applicant through Counsel has asserted that it was occasioned by the fact he had no knowledge that judgment had been delivered since no notice was issued. The Applicant deposed that he only became aware that judgment had been delivered on 2/2/2022 when he was served with the Certificate of Costs.

17. The Respondent in opposition, averred and deposed that the Presiding Magistrate issued Notice of delivery of judgment on 26/1/2022, scheduled on 2/2/2022; which notice was posted on Kenya Law Reports Website with regard to Eldoret Chief Magistrate’s Court link. The Respondent contended that the Applicant cannot therefore plead ignorance of the knowledge of the judgment date. The said notice however has not been presented before this Court.

18. I have further looked at the memorandum of appeal filed. It raises issues for determination by this court. I find the said issues to be arguable and I can’t dismiss them for being idle. The applicant should be given an opportunity to articulate them before the appeal court.

19. I am therefore satisfied that the delay or default on the part of the Applicant has been satisfactorily explained.

20. The principles guiding the grant of stay of execution pending appeal are well settled.

21. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except 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 orders set aside.No order for stay of execution shall be made under sub rule 1 unless:-a)The Court is satisfied that substantial loss may result to the 1st Applicant unless the order is made and that the application has been made without unreasonable delay; andb)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.

22. An applicant needs to satisfy the Court on the following conditions before they can be granted the stay orders:a)Substantial loss may result to the Applicant unless the order is made,b)The application has been made without unreasonable delay, andc)Such security as the court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the Applicant.

23. As to whether the applicant shall suffer substantial loss, in the case of Kenya Shell Limited vs Benjamin Karuga Kigibu & Ruth Wairimu Karuga (1982-1988) KAR 1018 the Court of Appeal pronounced itself to the effect that:“It is usually a good rule to see if Order 41 Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the Applicant, it would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay.”

24. The Applicant has a burden to show the substantial loss it is likely to suffer if no stay is ordered. This is in recognition that both parties have rights; the Appellant to his Appeal which includes the prospects that the Appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The Applicant herein contends that he shall suffer irreparable loss if stay is not granted. Although the Applicant has not shown the substantial loss he is likely to suffer in the event that stay is not granted, the Respondent on the other hand has not provide any evidence to prove that in the event the Appeal succeeds it will be able to repay the Applicant herein. In the circumstances am of the view that stay ought to be granted.

25. The Applicant ought to satisfy the condition of security. The Applicant has not expressed whether he is ready to offer security of costs. However, this Court has the discretion on the issue.

26. Upon considering all these facts, I find merit in the application on both prayers. The upshot is that the application dated 17th March, 2022 is allowed on the following conditions:a) Leave to appeal out of time is granted.b) The memorandum of appeal dated 10th March, 2022 is hereby admitted and deemed duly and properly filed within time.c) There shall be stay of execution of the Judgment and decree of the lower Court pending appeal on the following conditions:i. The Applicant to pay the Respondent Kshs. 208,450/= within 14 days from the date of this ruling.ii. The balance of the decretal sum being Kshs. 208,450/= be deposited in a joint interest earning account in the names of the parties Advocates on record within 30 days.iii. Stay shall automatically lapse for failing to comply with (i) and (ii) above.d) Parties to bear own costs.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 19TH JULY 2022E. K. OGOLAJUDGE