[2022] KEHC 434 (KLR)

Mau Narok Nissan And Co-Operative Society Ltd v Langas & 3 others (Civil Appeal E011 of 2021) [2022] KEHC 434 (KLR) (10 May 2022) (Ruling)

Neutral citation: [2022] KEHC 434 (KLR)

Republic of Kenya

In the High Court at Narok

Civil Appeal E011 of 2021

F Gikonyo, J

May 10, 2022

Between

Mau Narok Nissan And Co-Operative Society Ltd

Applicant

and

Sammy P Langas

1st Respondent

Parsaloi Ole Sapurr

2nd Respondent

Olooru Ole Ntete

3rd Respondent

Equity Bank, Narok Branch

4th Respondent

Ruling

1. The significant orders sought in the Notice of Motion dated November 11, 2021, are;i.Leave to file appeal out of time against the judgment in CMCC no. 75 of 2018 on the 28th of July 2021. ii.Stay of execution of the said judgment pending the hearing and determination of the intended appeal; andiii.Costs of this application to be provided for.

2. The grounds upon which that application is premised are that judgment was delivered by Hon. Wakahiu on 28/07/2021 dismissing the suit in favour of the respondents. With the intent to appeal, the applicant requested for a copy of judgment via letter dated 3rd August 2021 and email dated 5th August 2021. The copy of judgment was made available on 8th September 2021. The applicant therefore prays that the orders sought be granted so as not to prejudice their right to appeal the judgment.

3. The grounds are reiterated and further explained in the affidavit of David Ngigi Kimani. The depondent further argued that the intended appeal is arguable and merits the consideration of this court.

4. The 1st, 2nd, and 3rd respondents filed a replying affidavit on February 4, 2022 sworn by Sammy P Langas on February 2, 2022 opposing the applicants’ motion. The respondents contended that the applicant has come to court with unclean hands since they are expelling the 1st respondent from the SACCO contrary to the judgment.

5. Directions were issued on February 7, 2022 that the application be canvassed by way of written submission.

6. Parties filed submissions except the 4th respondent who was not opposed to the application.

Applicant’s Submissions 7. The applicant submitted that the delay is not inordinate, and was due to the unavailability of the copy of judgment. In support of this argument, the applicant relied on the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [ 2013] eKLR, section 79g of the Civil Procedure Act, MFI Document Solutions Ltd v Paretto Printing Works Limited[2021] eklr.

8. The appellant/applicant’s reading of the replying affidavit was that the respondents had misconceived the application before the court. To the, the 1st respondent should have filed an application, and in any case, the issues raised by the 1st respondent are internal mechanisms provided for by the applicant’s by laws and manual therefore, this court should not interfere at this stage until the mechanisms are exhausted. The appellant/applicant relied on the cases of Paul Chemunda Nalyanya v Messina Kenya Limited [2015 eKLR, Paolo Murri v Gian Battisha Murri & another [2000 eKLR , Paul Mogaka Magoma v Gianchore Tea Factory Co. & 2 Others [2016] eKLR and Okiya Omtatah Okoiti & another v Kenya Power & Lighting Company Limited (KPLC) & 4 others[2020 eKLR.

9. Accordingly, the appellant/applicant stated that, their intended appeal has high probability of success and merit a chance to be heard on merit. They argued that they will suffer great prejudice, for they shall lose their business premises and ability to conduct their trade effectively. They therefore prayed that they be allowed to file record appeal out of time.

The 1st, 2nd and 3rd Respondents’ Submissions 10. The respondents submitted that the applicant has not come to court with clean hands since it is in contempt of the trial court’s judgment by expelling the 1st respondent contrary to the said judgment that they seek to appeal against. They relied on the cases of EM v KFM &NGK [2020] eKLR, Miguna Miguna v Fred Matiang’i C S Ministry of Interior and Co Ordination of National Government and 8 others[2018] eKLR, Econet Wirelesss Kenya Limited v Minister for Information & Communication of Kenya & another[2005] eKLR, Hadkinson v Kadkinson[1952] 2 All ER 567, Esther Nugari Gachomo v Equity Bank Limited [2019] eKLR, and Caliph Properties Limited v Barbel Sharma & another [2015] eKLR.

11. The respondents submitted that the applicant need to comply with the judgment then pursue the right of appeal. That they should rescind the letter dated 21/1/2022 and issue the 1st respondent motor vehicle with the transport license. They relied on the case of Esther Nugari GachomovEquity Bank Limited (supra).

12. The respondents urged this court to be guided by the maxim ‘he who comes to court must come with clean hands. They prayed that this court should dismiss the application and order the applicant to first comply with the judgment they seek to wholly appeal against.

Analysis and determination 13. I have considered the application by the applicant, the grounds, supporting affidavit, replying affidavit and written submissions for and against the application as supported by cited authorities. In my view, the main issue for determination is whether there is merit in the application for leave to appeal out of time and stay of execution.

Leave to appeal out of time. 14. The time for filing an appeal from judgment of the subordinate court to the High Court is 30 days. Except, the said time for filing appeal excludes such period 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(section 79G, the CPA).

15. However, under section 79G of the Civil Procedure Act (hereafter CPA), the court may permit a litigant to file appeal out of time if it is satisfied that there was good reason for not filing the appeal in time.

16. The applicant did not file appeal within the time prescribed. The question is whether the delay is inordinate and, therefore, inexcusable?

17. Some of the guiding principles in an application for enlargement of time includes ‘’…, but no limited to, the period of delay, the reasons for the delay, the degree of prejudice to respondent if the application is granted, and whether the matter raises issues of public importance,’’(Odek JA in Edith Gichungu Koine v Stephen Njagi Thoithi[2014] eKLR, See also Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others [2014] eKLR).

18. Has the delay been explained?

19. According to the applicants’ legal counsel, the delay in not filing appeal in time was because they were not supplied with a copy of judgment by the executive officer on time. I have perused the record; it shows that; i) the applicant requested for a copy of judgment via letter dated 3rd August 2021 and email dated August 5, 2021; and ii) they were supplied with a copy of judgment on 8th September 2021. The judgment sought to be challenged was rendered on 28/7/2021. The applicant applied for leave to file appeal out of time on 11/11/2021- which was about two months and two weeks late. Worthy of note is; the promptness in applying for judgment by the applicant, and late supply of the judgment by the court. I do note that, upon receipt of the judgment the applicant applied for leave after approximately two months. Judicial wisdom favour promotion of a right; in this case, right of appeal, especially because the amount of delay does not seem to be extreme or a likely source of prejudice to the respondent. I do not find the delay to be contumelious or beyond unreasonable limits.

20. What of the degree of prejudice to the respondents? It bears repeating that the parties herein are members of the applicant SACCO. Intense evaluation of the appeal is in the best interest of the SACCO as well as its members. There is not really any prejudice that the respondents will suffer by an extension of time to file appeal.

21. In the upshot, I find that; the delay of two months has been explained to the satisfaction of the court; it is not inordinate or inexcusable; and that, there will be no prejudice to the respondent in granting leave to appeal. Obedience to the command is that courts should always favour enforcement of a right rather than denying it where circumstances permit exercise of discretion. Consequently, I grant the applicants leave to file appeal in 30 days.

Stay of execution1. A perusal of the trial court’s judgment shows that the plaintiff’s case was dismissed with costs to the defendants. This is a negative order.2. Judicial authorities in this country has it that a negative order is incapable of anchoring any executable orders, and stay of execution of a negative order should not issue (See Milcah Jeruto v Fina Bank Ltd [2013] eKLR, Electro Watts Limited v Alios Finance Kenya Limited [2018] eKLR andKenya Commercial Bank Limited v Tamarind Meadows Limited & 7 others [2016] eKLR).3. Even if I be wrong in my understanding of negative orders, the question would be; of the dismissal order, what execution is to be stayed? Acts complained of are not elements of or endogenous to, or arising out of the dismissal order; they are outside and should be addressed through other appropriate remedies but not stay of execution of the judgment dismissing the suit. In any case, Order 42 Rule 6 (2) of the Civil Procedure Rules, 2010 has not been satisfied especially on substantial loss.

Conclusions and orders 4. Ultimately, I issue the following orders:i.Leave to file appeal out of time is granted. The Appeal to be filed within 30 days.ii.The appellants request for stay of execution of judgment is denied.iii.Costs in the cause.

5. It is so ordered.

Dated, signed and delivered at Narok through Teams Application, this 10th day of May, 2022. --------------------------------F. GIKONYO M.JUDGEIn the Presence of:1. Okumu for the Applicant2. Masikonde for the Respondents3. Kipkurui for 4th Respondent4. Kasaso – Court Assistant