[2022] KEHC 3257 (KLR)

Mashru v Abdilleh (Civil Appeal 32B of 2017) [2022] KEHC 3257 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3257 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal 32B of 2017

SN Riechi, J

May 12, 2022

Between

P.N. Mashru

Applicant

and

Abdi Yusuf Abdilleh

Respondent

Ruling

1. In its application dated August 10, 2020, the applicant P. N. Mashru seeks the following orders;1. The honourable court be pleased to grant stay of execution of the judgement and decree in tis appeal pending hearing and determination of the appeal herein.2. That upon inter-parties hearing herein, the court be pleased to grant an order of stay of execution of the judgment and decree in this appeal pending hearing and determination of the intended appeal.3. That the time for making an application for leave to appeal by the applicant against the judgement of the court delivered on 29/5/2020 be extended.4. That leave be granted to the applicant to appeal against the judgment of the honourable court delivered on 29/5/2020. 5.The time for giving Notice of Appeal by the applicant against the judgment of the court delivered on 29/5/2020 be extended.6. That the notice of appeal filed by the applicant on 24/7/2020 be deemed properly filed.7. Costs of the application.

2. The application is premised on the grounds in the face of the motion and the sworn affidavit of A. Otsyemo counsel for the applicant who besides reiterating the grounds on the motion depones that judgement was delivered in this matter without notice to them and it was not until 29/7/2020 when counsel visited the civil registry to inquire on the status of the matter.

3. That upon realizing that judgment has been delivered, they promptly informed their client who instructed them to lodge an appeal against the judgment thus the inability to move the court for leave to appeal within the prescribed time owing to scaling down of court operations occasioned by the global Covid-10 pandemic.

4. Counsel depones that they managed to file the notice of appeal via mail on 16/7/2020 and received by the registry on 24/7/2020 and therefore the circumstances occasioning the delay were beyond their control. He depones that if the stay is not granted, the decree holder may execute anytime rendering the intended appeal naught. Counsel finally avers that they are ready and willing to furnish security against the appeal which has high chances of success.

5. The application is opposed. Mr. Chepkonga A. counsel on record for the respondents filed a replying affidavit deposed on 24th March, 2021 deponing that indeed judgement was delivered electronically on 29/5/2020 after all parties were notified since parties had provided their emails to the court. He therefore depones that the applicants counsel had known of the delivery of judgement on 29/5/2020 because he filed Notice of Appeal on 24/7/2020.

6. He depones that in any case, counsel has not adduced evidence of any correspondence with the applicant in support of the timelines mentioned. That the applicant has not exhibited a Memorandum of Appeal demonstrating that he has an arguable appeal and since the respondent is a transporter, he is a man of means capable of refunding any decretal sums paid to him.

7. By directions of the court, the application was disposed of by way of written submissions. Both parties complied. The applicant submits that they were not notified of the delivery of judgement either physically or via mail because the court was transitioning from physical to virtual proceedings. That they were instructed to pursue the appeal on July 7, 2020 thus the application.

8. Counsel submits that under Order 42 Rule 6, the court is empowered to grant orders of stay upon the party satisfying the conditions enumerated in Sub-rule 2. On the requirement that one has to establish substantial loss, counsel submits that the judgment herein can be executed anytime. He submits that the respondent is a man of straw who will be unable to refund the decretal sum if paid to him and the appeal finally succeeds.

9. Counsel urges this court to scrutinize the circumstances under which the delay occurred and exercise its discretion and enlarge time. The cases of Lochab Transport LimitedvsTeresia Wangare & anor (2015)eKLR and in re estate of the late Bartholomew wafyla lule(deceased) (2019)eKLR have been cited in support.

10. The respondent submits that the applicant has not met the threshold for the extension of time as enunciated in the case of Nicholas Kiptoo Arap Korir SalatvIndependent Electoral and Boundaries Commission & 7 others [2014] eKLR and Karny Zahrya & another v Shalom Levi [2018] eKLR. Counsel argues that the applicant has not advanced sufficient reasons to warrant extension of time. Counsel contends that the notice of appeal was served late in contravention of Rule 77 of the Court of Appeal Rules. Reliance has been placed in the case of County Government of MombasavsKooba Kenya Ltd (2019)eKLR .

11. On the issue of stay of execution, counsel submits that the applicants have not met the threshold for the grant of such an order in that the applicant has not demonstrated any loss it will suffer or furnished security for the due performance of the decree.

12. The respondent has also taken issue with the applicant annexing documents to the submissions. He has cited a number of authorities in support of the proposition that supporting documents ought not be annexed to submissions; Erastus Wade Opande v Kenya Revenue AuthorityKisumu HCCA 46/2007, Nancy Wambui GatheruvsPeter W Wanjere Ngugi,Nairobi HCCA 36/1993, Daniel Toroitich Arap MoivMwangi Stephen Muriithi & another(2014)eKLR and Avenue Car Hire & anothervSlipha Wanjiru Muthegu HCCA 302/1997

13. The context running up to the application is that this court delivered its ruling on 29/5/2020 electronically pursuant to GN 3127 of 2020 owing to the global covid-19 pandemic. From the certificate on record, it appears that only the respondent’s counsel had supplied his email address to the court and there is no evidence that the applicant had supplied his.

14. It is common ground that judgement was delivered on 29/5/2020 and the respondent filed his notice of appeal on 24/7/2020 and the letter requesting for proceedings on 24/8/2020. Clearly the applicant had been caught up by time. Fourteen days from the date of delivery of judgement means that the applicant ought to have filed the notice by June 11, 2020or thereabouts. In the circumstances obtaining in this matter, the applicant only filed the appeal on July 24, 2020 which is a period of approximately 43 days late from the last day of filing notice of appeal.

15. Over the years, courts have attempted to come up with conditions that the applicant ought to meet when one has run out of time. In Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 the court stated as follows:

16. 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 in general the matters which this court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.

17. In Andrew Kiplagat ChemaringovPaul Kipkorir Kibet [2018] eKLR as was cited by the applicant, this Court stated:“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.”

18. Similarly, the Supreme Court in Nicholas Kiptoo Korir arap Salat v IEBC & 7 others[2014] eKLR held:The underlying principles a court should consider in exercise of such discretion include:1. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;3. Whether the court should exercise the discretion to extend time, is a consideration to be made a case to case basis;4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;5. whether there will be any prejudice suffered by the Respondent if the extension is granted;6. Whether the application has been brought without undue delay.7. .......”

19. The explanation offered for the delay are;1. Judgment was delivered electronically without notice to the applicant.2. Upon noticing that judgment had been delivered after visiting the registry, they informed the applicant who gave instructions to appeal.3. They managed to send the notice of appeal to the registry on 16/7/2020 but assessed and date-received on 24/7/2020.

20. In determining whether the applicant has met the threshold for extension of time, the court considers inter aliawhether there is a good and reasonable explanation for the delay; whether the application has been brought without undue delay; whether the proposed appeal is arguable, and whether any prejudice will be suffered by Respondent.

21. Having considered the length of the delay and the reasons advanced for the delay together with the steps taken by counsel, the court finds that sufficient reasons have been given for the delay of approximately 43 days. The court is satisfied that counsel was not indolent upon realizing that judgment had been delivered notwithstanding the challenges posed by the Covid-19 pandemic.

22. On the issue of stay of execution pending appeal, order 42 rule 6 of the civil procedure rules provides;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 applicant unless the order is made and that the application has been made without unreasonable delay; and(b)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.

23. These provisions of the law have received several interpretations suggesting that the court ought to strike a balance between the rights of either party to the dispute with a view of doing justice.

24. In Kenya Women Microfinance Ltd v Martha Wangari Kamau [2020] eKLR, Odunga J. observed;…………What is expected of the court is to ensure that the aims and intendment of the overriding objective as stipulated in section 1A as read with section 1B of the Civil Procedure Act are attained. It is therefore important that the court takes into consideration the likely effect of granting the stay on the proceedings in question. In other words, the court ought to weigh the likely consequences of granting the stay or not doing so and lean towards a determination which is unlikely to lead to an undesirable or absurd outcome. What the court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the court on equal footing and see where the scales of justice lie considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the court do not render nugatory the ultimate end of justice. The court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice.

25. Having considered the submissions by the parties and adopting an approach that would occasion lower risk of damage to either party. It is trite the respondent is entitled to the fruits of judgment while the respondent is entitled to pursue its appeal to the very logical conclusion. The assertion of whether the respondent is capable of refunding the decretal sum if so paid and the appeal is finally successful is relevant factor to be considered.

26. Having taken all the facts into consideration, the court is satisfied that the applicant has advanced sufficient reasons for the grant of stay of execution pending the intended appeal to the Court of Appeal.

27. Upon perusal of the file, the court notes that the applicant has not attached a draft memorandum of appeal to show that he has an arguable appeal with chances of success. Nonetheless the issue of failure to attach a draft Memorandum of Appeal was up for consideration in Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited[2020] eKLR where it was held;

28. It is appreciated no draft memorandum of appeal is annexed. That default notwithstanding the principle of law set out above on this issue indicates clearly that in the absence of a draft memorandum of appeal the court can gauge the arguability of an intended appeal from other supportive evidence. Herein the applicant intends to challenge the dismissal of its liquidated claim which according to counsel involves a colossal amount of money. In my view, that in itself is arguable notwithstanding that it may not succeed as in law an arguable appeal need not succeed so long as it raises a bona fide issue for determination by the court. In my view, the issue of whether the applicant's claim was meritorious or otherwise is arguable notwithstanding that it may not succeed.

29. The rights of a party to appeal are the cornerstone of our Constitution which guarantees the right to be heard, the same has been upheld in several decisions of this court so that the court is called upon under article 159 to render substantive justice by overlooking procedural flaws that might have the effect of impeding access to this sacrosanct right.

30. In the circumstances of the instant case, as can be discerned from the Notice of Appeal that the applicant intends to challenge the sums awarded for motor vehicle repairs. The applicant is perfectly entitled to challenge this in the appellate court. It matters not whether the appeal will be successful ultimately or not.

31. Taking the preceding into account, the court grants the following orders;1. The applicant is granted leave to file his appeal to the court of appeal out of time.2. The applicant to file his memorandum of appeal within 14 days of this ruling.3. Stay of execution is granted on condition that the applicant deposits the sum of Kshs 1,393, 101/= in a joint interest earning account with a reputable financial institution in the names of both counsel on record within 30 days from the date hereof.4. In default of the preceding conditions, the orders herein lapse and the respondent be at liberty to execute.5. Costs of the application shall abide the outcome of the intended appeal.

**DATED AT BUNGOMA THIS 12TH DAY OF MAY, 2022S. N. RIECHIJUDGE