[2022] KEHC 1824 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CIVIL APPEAL NO. E049 OF 2021

MILLICENT WAMAITHA NJOGU (Sued as the administrator of the Estate of

PETER NJOGU MARAGA alias peter NJOGU MURANGA.........APPLICANT

-VERSUS-

PAULINE NYAMBURA WAWERU............................................... RESPONDENT

RULING

1. The application before the court is the Appellant’s Notice of Motion dated 27th October, 2021 brought under Sections IA(1)(2)(3), 3, 3A,of theCivil Procedure Act, Order 10 Rule 11andOrder 51of theCivil Procedures Rules and all enabling provisions of the Law.

2. The application seeks one substantive prayer namely: the court be pleased to grant stay of further proceedings in Naivasha CMCC No.676 of 2019 pending the hearing and determination of the instant appeal. The second is what pends for determination.

3. The Application is supported by the Affidavit of MILLICENT WAMAITHA NJOGU, thelegal administrator of the Estate of Peter Njogu Maraga alias Peter Njogu Maranga(deceased) the owner of motor vehicle KCM 296V insured by Direct Line Assurance at the time of the accident and at whose instance Naivasha CMCC No.676 of 2019 was defended. It is averred that the lower court delivered a ruling in Naivasha CMCC No. 676 of 2019: Pauline Nyambura Waweru Vs Millicent Wamaitha Sued as the administrator of the Estate of PETER NJOGU MARAGA alias peter NJOGU MURANGAon 24th August, 2021 in favour of the Respondent herein in the sum of KShs. 50,000/- as throw away costs before the next hearing date which was on 17th December, 2021. The Appellant contends that the sum is on the higher side.

4. It is averred that the Appellant is aggrieved by the judgment by the trial court and has lodged a Memorandum of Appeal in this court against the same. The Appellant believes that if the stay of proceedings order does not issue the application will be rendered nugatory and will suffer irreparable loss. She contends that the application will not occasion any prejudice to the Respondent that cannot be compensated with payment of reasonable costs.

5. In opposition, the Respondent filed a Replying Affidavit sworn on 16th November, 2021 deposing that the application lacks merit and is an abuse of the court process. He contends that on the 19/05/2018 while travelling in the Applicant’s vehicle, the vehicle was carelessly driven leading to an accident which occasioned him serious injuries that he cannot walk for long distances nor utilize the means of transport available to him. He deposed that he has since had to close down business as the healing is delayed and stopped attending church services. He then sought legal dress and filed Naivasha CMCC No 676 of 2019. The Respondent contends that a service of summons together with all the pleadings was effected upon the Appellant which went unanswered and further even served the required statutory Notice upon the Appellant’s Insurer. The Respondent argues that the Appellant failed to enter Appearance and file a Defence in the lower court within the stipulated timelines. She thus obtained a Default Judgment which was allegedly regularly entered. The Respondent contends that thereafter the Appellant filed an application dated 08/03/2021 seeking to set aside the default judgment and for leave to defend the suit. The application was heard where on 24th August, 2021the interlocutory judgment was set aside and the Appellant directed to file pleadings in defense and where the Appellant was directed to pay KShs 50,000/- before the next hearing date.

6. The Respondent contends that the throw away costs are reasonable given the alleged dilatory conduct of the Appellant in the lower court.

7. The Respondent contends that pursuant to the ruling, the Appellant filed her statement of Defence and supporting documents signifying its acceptance of the said ruling. Further, that the Appellant’s Appeal is an attempt to set aside the part-complied with ruling thus approbating and reprobating contrary the law.

8. The Respondent contends that the Appellant did not deny before the lower court the Summons to Enter Appearance, the Plaint and its attendant documents which were all served on her on 15/01/2021, but failed to enter appearance within the stipulated time in the summons.

9. The Respondent contends that it was not also denied by the Appellant the effecting of service on its Insurer of its pleadings and warned the Appellant’s insurer of its intention of seeking default judgment. The Respondent contends that its request for default judgment on 02/02//2022 saw the Appellant make no attempt to file a Memorandum of Appearance. Consequently, on 23/02/2022 a default judgment was entered which the Appellant did not contest in court.

10. The Respondent contends that the Application has been instituted after inordinate delay with the Ruling having issued on 24/08/2021 but the Applicant did not file the Application until 28/10/2021. She submits that allowing the application herein would be prejudicial and detrimental to her and that in any case, the Appellant will not suffer prejudice if the Application is dismissed.

11. The Respondent contends that the throw away costs is relatively small and refundable in the unlikely event that the Appeal succeeds.

12. She moots that she would suffer immensely if the Application is allowed in that she would be stalled in seeking redress for the accident that happened 3 years ago.

13. Further, she contends that there is no nexus between the Appeal on the throw away costs and the merits of the lower court suit thus in declining the Application the Appeal would not be rendered nugatory.

14. It was also the Respondent’s contention that the Appellant has dragged her feet in prosecuting the appeal indicated by the lack of applying for and obtaining a copy of the Order being appealed from and is therefore not expeditious in filing the Record of Appeal. The Appellant contends that it would be prejudicial to stay proceedings in the lower curt to await determination of the appeal which may take a while.

Submissions

Appellant’s submissions

15. The Application was canvassed by way of written submissions. To demonstrate his assertion that his appeal has high chances of success, the Appellant submitted that she is ventilating only one prayer and that is stay of further proceedings in Naivasha CMCC 676 of 2019. The Appellant relies in the authority of Civil Appeal 326 of 2013Kenya Power & Lighting Company Limited vs Esther Wanjiru Wokabi [2014] eKLRin ascribing to the three principles distilled in allowing a stay of proceedings as: Whether the Applicant has established that he/she has a prima facie case arguable; whether the application was filed expeditiously and whether the Applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.

16. On whether the Applicant has established that he has a prima facie case, the Appellant contends that the conventional awards in similar matters has not been considered by the lower court and further relies on Global Tours and travel Nairobi HC Winding Up Cause No. 43 of 2000 eKLR, where the court argued that all factors for grant of stay of proceedings should be considered.

17. On whether the application was filed expeditiously, the Appellant contends that it did not waste time in that the ruling was delivered on 24/08/2021 and immediately filed a Memorandum of Appeal on it. Further that, the Appellant being a widow of no means, it took time to receive instructions from her late husband’s insurance to take up the brief on her behalf.

18. On whether the Applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought, the Appellant contends that she will suffer substantial loss if stay is not granted. The Applicant contends that the Respondent’s means are well unknown and is unlikely to refund the costs if the Appeal succeeds having not furnished the court with documentation as to her financial standing.

Respondent’s submissions

19. The Respondent filed her written submissions on 29/11/2021. Whilst relying on her Replying Affidavit, she submitted as follows:

20. That Stay of proceedings as a grave judicial action ought to be granted sparingly and only in exceptional circumstances as was held in the case of MeruCivil Appeal No. 40 of 2018Kenya Wildlife Service vs James Mutembei [2019] eKLR. The decision posited that stay of proceedings interferes with a litigant’s right of access to justice, right to be heard without delay and right to a fair trial and this discretion ought to be employed sparingly and in exceptional circumstances.

21. On the need for expeditious disposal of cases/scarcity and optimum utilization of judicial time, the Respondent contends that the application shall frustrate the court’s overriding objective of delivering justice expeditiously. The Respondent contends that it is not fair that the lower court matter be held in abeyance indefinitely only on account of whether throw away costs of KShs 50,000/ she be paid. Furthermore, the issues raised in the appeal do not address the issues in the suit. Hence, optimal time of the lower court should be utilized in dispensing the trial.

22. On delay in filing the Application, the Respondent contends that the ruling was delivered on 24/08/202 and on the same day, by consent of the parties, a hearing date for December, 2021 was issued. Thus, by virtue of filing of the Application two months later, on 27th October, 2021 was an inordinate delay. The Respondent contends that by further not filing a Record of Appeal nor procuring a copy of the Order will further stall the process and therefore occasion prejudice to the Respondent.

23. As to whether the failure to grant the Application would render the Appeal nugatory, it is the view of the Respondent that the Appeal before court is interlocutory in nature. That the same should not be allowed as the suit in the court below is ripe for hearing. The Respondent contends that in the event that the Court allows the Appeal, it would either set aside or reduce the quantum which would not affect the merits of the suit before the lower court which is whether an accident occurred and whether the Respondent was injured amongst other prayers. As such, the appeal would not be rendered nugatory if the Application herein is not allowed.

24. As regards whether a prima facie case is demonstrated in the Appeal, the Respondent contends that the Appeal questions the exercise of discretion of the trial court. That in the appeal, the Appellant ought to show that that court considered irrelevant factors or failed to consider relevant factors. The Respondent relies on the Court of Appeal authority of Nairobi Civil Appeal 68 of 1982Price & Another vs Hilder [1984] eKLR and surmises that the Applicant has not demonstrated either scenario.

25. She contends that that the Applicant did not contest service of pleadings and that the Applicant’s Insurer was also served pleadings and a Statutory Notice. Further, that the Applicant did not enter appearance within the time stipulated and in the summons to enter appearance which led to a regular default judgment. As a result, due to the Applicant’s premeditated delay, the Respondent accrued costs tabulated before the lower court.

26. The Respondent filed Further Submissions on 29/11/2021 mooting that the Applicant sought to introduce new evidence in submissions in explaining the delay in filing the subject Application. The Respondent contends that the allegation that the Insurer needs more instructions from the Applicant has no merit because both the Insurer and the Applicant are within reasonable proximity. She contends that since it served the Insurer, it is inexplicable that the Insurer needed time to contact its insured for purposes of further instructions in an already existing and active matter.

27. The Respondent submits that the allegation that it cannot refund the fairly modest sum of KShs 50,000/- is not supported by any evidence. Furthermore, the court is in this application considering a different set of circumstances from those that will be considered in the appeal. It was urged that the application be dismissed.

Analysis and Determination

28. I have carefully considered the application, the Supporting Affidavits thereto, the Respondent’s response and the parties’ respective submissions. The only issue for determination is whether the Appellant has met the conditions necessary for the grant of stay of proceedings.

29. Stay of proceedings is governed by Order 42 Rule 6(1) of the Civil Procedure Rules which provides that:

“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.”

30. From the foregoing, it is evident that the power to grant stay of proceedings is an exercise of the discretion of the court on sufficient cause being shown by an Applicant.

31. The Court of Appeal decision inNairobiCivil Application 388 of 2018 Benson Khwatenge Wafula v Director of Public Prosecutions; Ethics and Anti-Corruption & 2 others (Interested Parties) [2020] eKLRstated that the interlocutory reliefs of stay of execution and stay of proceedings must be related to orders or proceedings of the court appealed.

32. Further the authority ofRe Global Tours & Travel limited (Nairobi) H.C. Winding up Cause No. 43 of 2000 quoted with approval in MeruCivil Appeal 40 of 2018Kenya Wildlife service -versus- Mutembei (2019) eKLR that:

“The court stated; As I understand the law whether or not I grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of Judicial Discretion to be exercised in the interest of justice. The sole question is whether it is in the interest to order a stay of proceedings, and if it is on what terms it should be granted.

In deciding whether to order a stay, a court should essentially weigh the pros and cons of granting or not granting the order, and in considering those matters it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal in the sense of not whether it will probably succeed or not or whether it is an arguable one. The scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously…. “…Stay of proceeding should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicialaction which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceedings is highand stringent…”

33. Therefore, the test from the above authorities is one that sets out the following parameters for a courts exercise in discretion in deciding whether or not to grant stay of proceedings as sought in this application;

a) Whether the Applicant has established that he/she has a prima facie arguable case.

b) Whether the application was filed expeditiously and

c) Whether the Applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.

34On the expeditious limb, the impugned ruling was delivered on 24/08/2021. The Application was filed on 27/10/2021 seeking the stay of proceedings. I find it that the time in between the dates being close to two months since the same was issued. The court inRe Global Tours & Travel limited (Nairobi) H.C. Winding up Cause No. 43 of 2000 stated that the test is high and stringent. Without derogating from this, I find the time taken in filing the Application from the date of issue of the Ruling to be one of a litigant dragging their feet. It must be noted that the matter has been in court since the year 2019 and thus judicial time ought not to be trifled with.

35. On the limb touching on whether the Applicant has established that he/she has a prima facie arguable case, the Applicant offered the explanation that the lower court has derogated in its awarding of costs in similar circumstances. In the case of Ibrahim Ahmed V Halima Guteti High Court at Mwanza Number 128 of 1967) 1968 THCD, the court held, inter alia;-

“The question for a court on appeal is whether the decision below is reasonable and can be rationally supported if so the lower court should be affirmed. The appeal judge may not in effect try the case de novo, and decide for the party he thinks should win…”

36. I find the authority of the High Court in Civil Appeal 52 of 1984 Idi Ayub Omani Shabani V City Council of Nairobi [1985]1KAR 681 instructive as it sets out how to handle appeals on general terms covering award of damages by the lower court;-

“An appeal court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”

37. Normally, in a matter of costs the discretion given is very wide though underpinned under Section 27of theCivil Procedure Act; a rule in which the provisions states that;-

“the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full powers to determine by whom and out of what property and to what extent such sots are to be paid.”

38. Significantly, on appeal any such award of costs should not be interfered with unless it’s proved by the Appellant existence of misdirection or application of wrong principles resulting in an erroneous decision. Whereas right to access justice under Article 48 of the Constitution insulates parties to a litigation for any exercise of discretion which impairs the attainment of that right, it’s imperative therefore that the costs so allowed by the court be proportionate to what is at stake.

39. The authority of JudicialReview No. 6 of 2014R V Rosemary Wairimu Munene, Exparte Applicant V Ihururu Dairy Farmers Co-operative Society is instructive as the court recognized that;

“In exercising discretion under section 27 of the Civil Procedure Act the objective should not be sued to penalize the losing party, neither it is for compensating the successful party for the trouble taken in prosecuting or defending the case.”

40. In the English persuasive authority of Scherer V Counting Instruments Ltd [1986] IWLR 615,the English Court of Appeal set out the principles for the award of costs which are in essence not far distanced from our local jurisprudence. They are;-

“a) The normal rule is that cost follows the even. The party who turns out to have unjustifiably either brought another party before the court, or given another party cause to have recourse to the Court to obtain his rights is required to compensate that other party in costs; but

b) The judge has an unlimited discretion to make what orders as to costs he considers that the justice of the case requires.

c) Consequently, a successful party has a reasonable expectation of obtaining an order for his costs to be paid by the opposing party, but has no right to such an order, for it depends upon the exercise of the Court’s discretion.

d) This discretion is not one to be exercised arbitrarily, it must be exercised judicially, that is to say, in accordance with established principles and in relation to the facts of the case.

e) The discretion cannot be well exercised unless there are relevant grounds for its exercise, for its exercise without grounds cannot be a proper exercise of the judges’ function.

f) The grounds must be connected with the case. This may extend to any matter relating to litigation, but no further. In relation to interim application, “the case” is restricted to the application, and does not extend to the whole of the proceedings.

g) If a party invokes the jurisdiction of the court to grant him some discretionary relief and establish the basic ground therefor, but the relief sought is denied in the exercise of discretion the opposing party may properly be ordered to pay his costs. But where the party who invokes the Court’s jurisdiction wholly falls to establish one or more of the ingredients necessary to entitle him to the relief claimed, whether discretionary or not, it is difficult to envisage a ground on which the opposition party could properly be ordered to pay his costs.”

41. In the instant appeal, it is not denied from the record that a claim on liability and damages was filed by the Respondent against the Appellant in an accident which occurred on or about 19. 05. 2018 along Naivasha-Nairobi Highway. The Respondent is alleged to have been travelling on board motor vehicle registration KCM 296V when the Appellant’s driver so negligently drove, managed and or controlled the aforesaid motor-vehicle that the same lost control and overturned whereof the Respondent sustained several injuries as particularized in her Plaint. What happened thereafter was that summons was served upon the Appellant who failed to defend the suit in CMCC 676 of 2019.

42. The Appellant having failed to take necessary steps to participate in the court process within such a time as the honorable court decreed, the trial proceeded as scheduled. The court was therefore right to have proceeded to determine the issues in conformity with procedure law. The lower court then exercised its discretion in terms of throwaway costs of 50,000/- to compensate the Respondent in all incidentals incurred during the prosecution of the suit where default judgment was entered in favour of the Respondent.

43. I find the literary work of Justice Kuloba in, ‘‘Judicial Hints on Civil Procedure 2nd Edition’’ as a guiding light when he opines on the provision in Section 27 of the Civil Procedure Act thus:

“The event” this is the word, the event means the result of all the proceedings to the litigation. The event is the result of the entire litigation. It is clear however, that the word event is to be registered as a collective noun and is to be read distinctively so that in face it may mean the events of separate issues.”

44. In my view the Respondent being awarded throwaway costs are to cater for substantial indemnity costs to reflect time that was wasted and would be duplicated when the trial is rescheduled. Thus, as per the authorities listed above, particularly the principles as set out in Re Global Tours & Travel limited (Nairobi) H.C. Winding up Cause No. 43 of 2000, I find that the grounds in the Memorandum of Appeal as well as in the application unsatisfactory in that the application was filed inordinately late and the prima facie case levelled is no prima facie case at all as it is a mere stating that the lower court’s award of KShs 50,000/ is too high.

45. Lastly, I also find that the limb of whether the Applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought, not compelling reason as the award is in the discretion of the lower court informed by the subject matter before it.

46. I note that the Appellant is not contesting liability in her appeal. She has not also controverted the Respondent’s assertion regarding that she suffered injuries from a vehicle allegedly owned by the Applicant.

47. From the foregoing, it is no doubt the application does not meet the threshold for grant of the prayers sought. The same is accordingly dismissed with costs to the Respondent.

DATED AND DELIVERED AT NAIVASHA THIS 10TH DAY OF FEBRUARY, 2022.

G. W. NGENYE-MACHARIA

JUDGE

1. Mr. Thairu for the Appellant/Applicant.

2. Mr. Thuo for the Respondent.