[2022] KEHC 16084 (KLR)

Mirambo v Treadsetters Tyres Ltd & 3 others (Commercial Miscellaneous Application E398 of 2022) [2022] KEHC 16084 (KLR) (Commercial and Tax) (14 November 2022) (Ruling)

Neutral citation: [2022] KEHC 16084 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Commercial Miscellaneous Application E398 of 2022

DO Chepkwony, J

November 14, 2022

Between

Peter Mayore Mirambo

Applicant

and

Treadsetters Tyres Ltd

1st Respondent

Linear Coach Limited

2nd Respondent

Alfred Moffart Omundi Michira

3rd Respondent

Duncan Michira Mogaka

4th Respondent

Ruling

1. This is a ruling in respect of a notice of motion application dated May 24, 2022 brought pursuant to sections 1A, 1B, 3A and 63(e), all of the Civil Procedure Act, order 42 rule 6(1)(2) and 51 rule (1) of the Civil Procedure Rulesseeking for orders that:-a.Spent;b.That there be a stay of execution of the ruling delivered on March 19, 2021 in the lower court in Milimani CMCC No 5825 of 2007 and any other subsequent and consequential orders pending the hearing and determination of the application/intended appeal.c.That this honourable court be pleased to grant the applicant leave to appeal out of time against the ruling in Milimani CMCC No 5825 of 2007. d.That the costs be in the cause.

2. The application is supported by grounds on its face and reiterated in the supporting affidavit sworn by Peter Mayore Mirambo on even date. The gist of the application is that the applicant, who is the intended appellant is the objector in Milimani CMCC No 5825 of 2007, Treadsetters Tyres Limited – vs – Linear Coach Limited & another which is the subject matter of this application. He states that he wanted to purchase a parcel of land and was introduced to the 3rd respondent who agreed to sell to him LR No Nyariribari/B/B/Borura/4917. He performed due diligence through his advocates and confirmed that the parcel of land indeed belonged/belongs to the 3rd respondent. The applicant goes on to aver that on July 5, 2018, a court order was issued and the same was lodged against the title and that is when he commenced the objection proceedings. A ruling was delivered in respect of the said proceedings on March 19, 2021 in the absence of the applicant and his advocates who failed to attend court due to Covid-19 pandemic restrictions. He also could not obtain the proceedings and judgment for the same reason. He admits that it was difficult for him and his previous advocates to know whether the ruling had been delivered and take steps. But when he learnt of the ruling, in May, 2022, he brought the instant applicant without delay as he was dissatisfied with the decision of the lower court and wishes to challenge the same on appeal. Despite the delay, it is the applicant’s prayer that if an order for stay of execution leave to file an appeal out of time are not granted, he stands to suffer irreparable/substantial loss as he will lose the land as well as the purchase price.

3. The 1st respondent has opposed the application vide a replyng affidavit sworn on June 14, 2022 in which he has urged the court to dismiss the application on the basis of delay as the applicant has not shown this court the steps it took to follow up on the status of their application. The respondent maintains that the applicant’s delay in bringing the application is inexcusable and the explanation unsatisfactory, hence does not warrant the court’s discretion to grant stay of execution or leave for the appeal to be filed out of time. According to the respondents, the applicant is in breach of order 43 rule 1(3) of the Civil Procedure Rules which require an applicant to seek leave before filing an appeal. For this reason, the application is incompetent and goes on to say that the electronic filing system was fully functional at the time when the ruling was delivered. The respondents contends that they do not recall any instance in which the applicant wrote to them seeking any clarification or update, hence the applicant is undeserving of the orders sought.

4. On June 15, 2022, the parties were directed to canvass the application by way of written submissions. The applicant’s submissions are dated July 5, 2022 while the 1st respondents’ submissions are dated July 15, 2022. I wish not replicate the same here as they are a repetition of the grounds in the parties affidavits.

Analysis and Determination 5. To determine the application dated May 24, 2022, I have read through the grounds on its face, the affidavits and written submissions filed by each party respectively together with the cited statute and case law. I find the two issues arising for determination being:-a.Whether the applicant has made a case for grant of leave to appeal out of time.b.Whether the applicant has met the condition for grant of stay of execution.

6. On the issue of whether the applicant has made a case for grant of leave to appeal out of time, the guiding provisions is section 79G of the Civil procedure Rules which provides:-“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”.

7. I have perused the record in this matter, and find that indeed after filing the objection proceedings wherein a ruling was delivered on November 9, 2011, the applicant took no action whatsoever until the present application was filed on May 24, 2022. It is imperative to note that the applicant has not produced any evidence to show the steps he took to follow up on the status of the application. His excuse is that the ruling was delivered in his absence and that of his advocate on record then and they could not confirm the status of the case due to the Covid-19 restrictions which made access to court impossible. His further excuse is that the current advocates were unable to access the file as it had been locked in the strong–room. Save for the excuse of Covid-19 restrictions, there is no evidence in terms of a letter to the executive to confirm follow up on the ruling or seeking an update. If the plaintiff was really and seriously desirous of pursuing this appeal, he has had and there is no evidence that the court file was unavailable as stated by applicant. Therefore, the delay in this case, cannot be excused and an indolent party must deal with the consequences of its inaction.

8. Furthermore, while courts are obliged to take judicial notice of the fact that Covid-19 outbreak caused down scaling of court activities, the ruling was delivered on March 19, 2021 when an electronic filing system was fully functional and the reason given for filing the application out of time is not sufficient.

9. However, by virtue of article 48 of the Constitutionof Kenya, 2010 which provides that every person is guaranteed to access justice without fear, indiscrimination and favour, in the interest of justice, the court grants the applicant leave to file out of time.

10. On the issue of whether the applicant has met the conditions for grant of stay, the principle that guides this court when deciding an application for stay of execution pending appeal have clearly been set out under order 42 rule 6(1) and (2) of the Civil Procedure Rules, 2010which provides as follows;"1. 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 order set aside.2. 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; 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"

11. The power of the court to grant or refuse an application of stay of execution is a discretionary power. The discretion should be in such a way as not to prevent an appeal. This was corroborated in the case of Wilson -vs- Churchwhere the following guidelines were issued per Brett, LJ;“It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory.’’

12. The applicant avers that he stands to suffer substantial loss of the purchase price and the parcel of land purchased if stay of execution is not granted. Leave to file an appeal alone does not act as an automatic stay of execution and because this honorable court has granted the applicant leave to file out of time, the orders granted by the lower court on March 19, 2021 are hereby stayed to allow the preservation of the subject matter in dispute.

13. The court, in the case of RWW –vs- EKW [2019]eKLR, considered the purpose of a stay of execution order pending appeal, in the following words:“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory’’

14. The notice of motion application dated May 24, 2022 is hereby allowed on the following terms;-a.There be a stay of execution of the ruling delivered in the lower court in Milimani CMCC No 5825 of 2007, on March 19, 2021 pending determination of the appeal.b.The applicant is granted leave to appeal out of time against the said ruling.c.The appellant to serve the record of appeal and set down the appeal within 90 days from the date hereof, failure to which the appeal will stand dismissed.d.The costs to be in cause of the appeal.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 14th DAY OF NOVEMBER , 2022. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Gekonge counsel for ApplicantNo appearance by and for RespondentCourt Assistant - Godfrey