[2023] KEHC 27007 (KLR)

Mkamba v Mkamba (Civil Appeal E194 of 2023) [2023] KEHC 27007 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27007 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E194 of 2023

DKN Magare, J

November 21, 2023

Between

Firoz Mohamed Mkamba

Appellant

and

Ngujo Dahabu Mkamba

Respondent

Ruling

1. This is a ruling on the notice of motion dated 21/7/2023 made seeking the following orders: -i.Order for stay of execution of Judgment of the Honourable Chief Magistrate at Mombasa in CMCC No. E1998 of 2021 delivered on 23rd February, 2023 pending determination of the Application.ii.Order for stay of execution of Judgment of the Honourable Chief Magistrate at Mombasa in CMCC No. E1998 of 2021 delivered on 23rd February, 2023 pending determination of the Intended Appeal.iii.Leave to file an appeal out of time.iv.That as condition for stay of execution pendign the hearing and determination of this Appeal/Intended Appeal, the Honurable Court be pleased to direct that the Applicant/Appellant be and ordered to provide security for the entire decretal sum in the form of bank guarantee to be issued by Family Bank Limited.

2. The application was opposed stating that they had already filed a declaratory suit being MCCC 860 of 2023 Ngejo Dahabu Mkamba =vs= Directline Assurance Co. Ltd. The summons for that suit were issued on 26/7/2023. The plaintiff is or a sum of 304,050/= arising from the judgment of 23/2/2023.

3. In their submissions, the Respondent stated that the Applicant is a stranger. This is because there is a typo – with the applicant being Firoz Mohamed Mkamba instead of Firoz Mohamed Ali. I will treat that as “demininus no execure at curat.

4. Secondly they stated that the application waited for 5 months and 7 days. They wrongly submit that the appeal ought to have been within 14 days from 23/2/2023. The appeals from the lower court be filed within 30 days of the decision. They rely on the decision of Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR, where the Court of Appeal stated as doth: -“There can be no doubt that the discretion I have to exercise under rule 4 is unfettered and does not require establishment of “sufficient reasons”. Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst others – See Fakir Mohamed V Joseph Mugambi & 2 Others, Civil Application Nai. 332 of 2004 (unreported). There is also a duty now imposed on the Court under sections 3A and 3B of the Appellate Jurisdiction Act to ensure that the factors considered are consonant with the overriding objective of civil litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the Court.”

5. They also relied on the decision ofK.M. vs Director of Patni Public Prosecution & 3 Others (2015) eKLR where the Court stated: -“The interest of the litigants and encompass public interest. In all these decisions, it is incumbent upon the court in exercising its judicial authority to ensure dispensation of justice as this is what lives up to the constitutional expectation and enhances public confidence in the system of justice.”

6. The Respondents view is that there is already a declaratory suit filed.

Applicants case and submissions. 7. The applicant submitted that the Court awarded 304,050/= on 23/2/2023. He was aggrieved but stay has since lapsed.

8. He is concerned that he will suffer unless stay is given. He stated that he was seeking a typed copy of judgment. He stated that he was aggrieved by quantum. He annexed a letter dated 14/7/2023 giving 10 days within which to pay. It is on the last of those 10 days that this application was filed. The applicant stated his name was Firoz Mohamed Mkamba even in the affidavit.

9. The ruling is not annexed the none enclosure as deliberate or by design. They will be answered by the respondents Replying affidavit. The judgment was delivered vide the last known event address. It means the same was already been typed. There is absolutely no reason for almost 4 months delay. The delay was not explained. The court has no jurisdiction to grant stay of execution without an application for leave having been granted.

10. The order for leave is granted when the following limbs are fulfilled.a.Reason for delayb.Whether the appeal is frivolousc.Whether there was full disclosure.

11. In this matter, there was no full disclosure that the Ruling was delivered by email. I f so then the raison d etre for delay collapses on its face.

12. The delay is for 4 months. It is an inordinate delay. This is compounded by the fact that the letter of 14/7/2023 was the trigger for the application. It is not an application made without mala fides.

13. In the circumstances, I find that the application to extend time is not merited. It fails in all the grounds. It is accordingly dismissed. It is thus necessary to go into the question of stay as there is no appeal.

Determination 14. In the circumstances, I make the following orders: -a.The application dated 21/7/2023 is hereby dismissed in limine with costs of 25,000/= to the respondent.b.This file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Mirembe for AppellantMasinde for the Respondent