[2022] KEHC 11216 (KLR)

Malingi v Muetete (Miscellaneous Civil Application E223 of 2021) [2022] KEHC 11216 (KLR) (10 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11216 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Civil Application E223 of 2021

OA Sewe, J

May 10, 2022

Between

Elias Malingi

Applicant

and

Josephine Katule Muetete

Respondent

Ruling

1. The applicant moved the Court vide his Notice of Motion dated 19th October 2021, seeking the following orders:(a)Spent;(b)That the Court be pleased to stay execution of the Judgment and decree in Mombasa Chief Magistrate’s Civil Case No. 1100 of 2020 pending the hearing and determination the application and the intended appeal;(c)That the Court be pleased to grant leave to the applicant to appeal out of time against the judgment delivered on 10th August 2021 by Hon. S. Lesootia, Principal Magistrate, in Mombasa Chief Magistrate’s Civil Case No. 1100 of 2020;(d)That the Court be pleased to allow the applicant to furnish the respondent with security for the decretal amount in the form of a Bank Guarantee from Diamond Trust Bank as attached to the application.

2. The application was brought under Sections 1A, 1B, 3, 3A, 79G and 95 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya; as well as Order 22 Rule 22, Order 42 Rule 6 and Order 50 Rule 6 and Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010. The application was premised on the grounds that judgment was delivered by the lower court on 10th August 2021; and that the 30 days’ period within which an appeal was to be filed had lapsed. It was further averred that the applicant is aggrieved by the judgment and is desirous of filing an appeal, which he believes stands a good chance of success.

3. In the Supporting Affidavit sworn by Ms. Winnie Julu, Advocate, it was averred that instructions to file an appeal were given to counsel after the period of 30 days provided for in Section 79G of the Civil Procedure Act had lapsed. Counsel also averred that the applicant is ready, willing and able to furnish security by way of a Bank Guarantee from DTB Bank and annexed a copy of the said Guarantee as Annexure “WJ-3” to her affidavit. She added that the delay was inadvertent and therefore ought not to be visited on the applicant. She believes that the intended appeal is arguable and raises pertinent points of law and fact; and therefore that the applicant ought to be given a chance to present the same before the Court for consideration.

4. The application was opposed by the respondent vide her Replying Affidavit sworn and filed on 8th November 2021. She took the position that the intended appeal is an afterthought and intended merely for the purpose of buying time and thereby delaying the conclusion of this dispute. The respondent also deposed that she is a retired Judiciary staff who is enjoying good pension in addition to farming; and therefore she is in a position to refund the decretal sum in the event of a successful appeal.

5. Pursuant to the directions given herein on 9 November 2021, the application was to be canvassed by way of written submissions. While counsel for the respondent complied on 24th March 2022, counsel for the appellant did not file any submissions. Then, on 21st April 2021, the parties were encouraged to negotiate and have the application compromised, particularly on the issue of security. The feedback provided this morning was that; whereas in principle counsel for the respondent is not opposed to stay, they were opposed to the applicant’s proposal to rely on the Bank Guarantee annexed to their application. She pointed out that the parties were therefore unable to fully agree on the issue of security. Ms. Kamau further reported that the only aspect agreed on was the payment of Kshs. 46,300/= to the respondent. She explained that they were unable to agree on whether the balance should be secured by a Bank Guarantee or by way of a deposit in an interest earning account in the joint names of counsel for the parties.

6. Counsel for the applicant did not attend court this morning, notwithstanding that today’s date was taken in the presence of Mr. Hamisi for the applicant. Accordingly, the Court has only the representations by Ms. Kamau to go buy in determining the issue of security.

7. The letter dated 22nd September 2021, annexed to the applicant’s Supporting Affidavit shows that judgment was entered in the respondent’s favour for Kshs. 440,646/= and that the sum remains unpaid. The proposed appeal, as is evident from the draft Memorandum of Appeal annexed to the Supporting Affidavit, is confined to the issue of quantum. I have consequently perused the so called Bank Guarantee exhibited by the applicant to the Supporting Affidavit and noted that it is nothing but a letter communicating the decision of the DTB Bank to grant the request by Directline Assurance Company Ltd for the facility. The letter further shows that it was upon that Letter of Offer that the Bank undertook to, from time to time, issue Tender Security Bond, Performance Bonds, Bank Guarantees and other financial accommodation to Directline Assurance Co. Ltd. Hence, as correctly pointed out by Ms. Kamau, that document is not a Bank Guarantee as such; and therefore the proposal by counsel for the applicant that it be treated as security is untenable.

8. Counsel for the respondent, on her part, has indicated that the parties agreed that Kshs. 46,300/= be paid to the respondent by the applicant. She consequently left it to the Court to make a determination as to how best to secure the balance of the decretal sum. She nevertheless proposed that the same be deposited in an interest earning account in the joint names of counsel on record for the parties.

9. Having given due consideration to the application and the response thereto; as well as the submissions made herein by learned counsel, the orders that commend themselves to me, and which I hereby grant, are as hereunder:(a)That leave be and is hereby granted to the applicant to appeal out of time against the judgment delivered on 10th August 2021 by Hon. S. Lesootia, Principal Magistrate, in Mombasa Chief Magistrate’s Civil Case No. 1100 of 2020;(b)That the Judgment and decree in Mombasa Chief Magistrate’s Civil Case No. 1100 of 2020 be and is hereby stayed pending the hearing and determination the intended appeal on condition that:(i)A sum of Kshs. 46,300/= be paid forthwith by the applicant to the respondent; at any rate not later than 7 days from the date hereof;(ii)The balance of the decretal sum be deposited in an interest earning joint account in the names of counsel for the parties within 30 days from the date hereof; failing which the order of stay shall automatically lapse.

10. (c)Costs of the application to be costs in the intended appeal.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 10TH DAY OF MAY 2022. OLGA SEWEJUDGE