[2019] KEHC 7021 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

MISC. CIVIL APPLICATION NO. 94 OF 2017

MIRIAM WAMBUI NDIANGUI.....................................APPLICANT

VERSUS

SIGMUND RUWA.................................................1ST RESPONDENT

SIMBA COACH LIMITED.................................2ND RESPONDENT

RULING

[1]Before the Court for determination is the Notice of Motion dated 22 August 2017. It was filed herein on 23 August 2017 pursuant to Section 3A, Section 79G and Section 95 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya; and Order 9 Rule 9; and Order 42 Rule 6(1)of the Civil Procedure Rules, 2010 for orders that:

[a] Spent

[b] Spent

[c] That the Court be pleased to order a stay of execution of the Judgment/Decree dated 25 April 2017 in Kapsabet SPMCC No. 180 of 2014; and the consequential proclamation and warrants of attachment pending the hearing and final disposition of the application;

[d] That the Court be pleased to issue leave to file and appeal out of time against the Judgment/Decision delivered by Hon. Obina in Kapsabet SPMCC No. 180 of 2014;

[e] That the firm of M/s Ochieng, Kokul & Velo Advocates be granted leave to come on record in place of Ashioya & Company Advocates;

[f] That the costs of the application be provided for.

[2]The Application is premised on the grounds that Judgment was entered against the Applicant for Kshs. 1,788,815/= inclusive of costs and interest; and the said Judgment was delivered in the absence of both parties and therefore he was not aware of the outcome of the case. It was further the assertion of the Applicant that the sum awarded does not take into account the current precedents based on similar injuries; and therefore that the appeal has high chances of success. He therefore prayed that the application be allowed in the interest of justice.

[3] The application was supported by the affidavit of Rashid Omar Abdalla, sworn on 22 August 2017 to which was annexed a draft Memorandum of Appeal for the Court's consideration; the key averment being that the Applicants were unaware of the Judgment and were therefore unable to file their appeal in time. His averments were however refuted by the Plaintiff/Respondent vide her Replying Affidavit sworn on 30 August 2017. The Respondent averred that the Defendants were well aware of the Judgment as they were duly served with notice thereof through their lawyers. The documents marked Annexure "MWN1a, b and c were relied on in proof of service. Thus, according to the Respondent, the application is simply a ploy by the Applicants to deny her the fruits of her Judgment. She further averred that the inordinate delay has not been explained; and that in any case the proposed appeal raised no triable issues. She added that, should the Court be inclined to allow the application, the Applicants should be compelled to deposit half the decretal sum with her Advocates on record together with the auctioneers charges.

[4] I have carefully considered the application, the affidavits filed in respect thereof, including their annexures, as well as the written submissions filed by Learned Counsel for the parties. Order 42 Rule 6 of the Civil Procedure Rules provides that:

"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..."

[5]Thus, the conditions an applicant for stay of execution of decree or order needs to satisfy, as set out in Rule 6(2) of Order 42aforementioned, are:

[a] that substantial loss may result to the applicant unless the order is made;

[b] that the application has been made without unreasonable delay.

[c] that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given.

[6] These somewhat stringent prerequisites are warranted; and the rationale for them was aptly given in Machira T/A Machira & Co. Advocates vs East African Standard (No. 2) [2002] KLR 63,thus:

"The ordinary principle is that a successful party is entitled to the fruits of his judgment or any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court."

[9]A careful consideration shows that the application for stay, as expressed in prayer 3 of the Notice of Motion dated 22 August 2017 is spent. That prayer only sought stay of execution pending the inter partes hearing and determination of the said application; and not the appeal. It is trite that a court of law can only grant that relief which is prayed for by the parties. Hence in Galaxy Paints Co. Ltd V Falcon Guards Ltd (2000) EA 885 it was held that:

“The issue of determination in a suit generally flowed from the pleadings and a trial court could only pronounce judgment on the issues arising from the pleadings or such issues as the parties framed for the court’s determination. Unless pleadings were amended, parties were confined to their pleadings. Gandy V Caspair (1956) EACA 139 and Fernandes V People Newspapers Ltd (1972) EA 63. ”

[7] To my mind, the same principles apply to applications such as the instant one. As for prayer for leave to appeal out of time, Counsel for the Applicants relied on Section 79G of the Civil Procedure Act, which recognizes that:

"Every appeal from a subordinate court to the High Court shall be filed within a period of 30 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 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."

[8] Accordingly, the Applicants explained that the only reason they failed to file their appeal in time was because they were not aware of the date for Judgment; and that the Judgment was reserved to be delivered on notice and that no notice was served on them. That is a plausible reason.

[9]In the result, I would allow the application dated 22 August 2017 and grant orders that:

[a] That leave be and is hereby granted to the Applicant to file the intended appeal out of time against the Judgment/Decision delivered by Hon. Obina in Kapsabet SPMCC No. 180 of 2014;and that the said appeal be filed within 14 days from the date hereof.

[b] That the costs of the application to abide the outcome of the appeal.

The rest of the prayers are dismissed.

It is so ordered.

SIGNED, DATED AND DELIVERED AT ELDORET THIS 8TH DAY OF MAY 2019

OLGA SEWE

JUDGE