[2022] KEHC 14761 (KLR)

Mohamed v Msagija (Deceased) suing through Peninah Wanjala Ngongo & Hezron Msagija (Miscellaneous Application E003 of 2021) [2022] KEHC 14761 (KLR) (1 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14761 (KLR)

Republic of Kenya

In the High Court at Garsen

Miscellaneous Application E003 of 2021

SM Githinji, J

November 1, 2022

Between

Fatuma Abdi Mohamed

Applicant

and

Lucas Msagija (Deceased) suing through Peninah Wanjala Ngongo & Hezron Msagija

Respondent

Ruling

1. The applicant herein has filed a notice of motion application under certificate of urgency dated the July 12, 2021 seeking the following orders:1. Spent.2. That this honourable court be pleased to extend time and grant leave to the applicant to lodge a memorandum of appeal out of time against the judgment and decree entered against the applicants by Hon E Kadima in Garsen CMCC No 76 of 2019. 3.That this honourable court be pleased to stay execution of the judgment and decree in Garsen CMCC No 76 of 2019 pending the hearing and determination of the application herein.4. That this honourable court be pleased to stay execution of the judgment and decree in Garsen CMCC No 76 of 2019 pending the hearing and determination of the intended appeal.5. That the draft memorandum of appeal filed together with this application be deemed to be duly filed on time.6. That this application be heard interparties on such date and time as this honourable court may direct.7. That this honourable court be pleased to issue any other orders that may deem fit, just and expedient in the interests of justice.8. That the costs of this application be in the cause.

2. The application was supported by the grounds on the face of the application and a supporting affidavit sworn by Nyabero Bokoo Brasinyon the July 12, 2021. He deponed that judgment was delivered on May 10, 2021 against the applicant for a sum of Kshs 1, 356,000/- as the decretal amount plus costs and interests of the suit. That judgment was to be delivered on the May 20, 2021 but he later received a demand letter from the respondent advocate indicating that judgment had already been delivered on the June 10, 2021. That time within which to file an appeal had already lapsed by the time he was receiving instructions to appeal.

3. He asserted that there is imminent threat of execution by the respondent to execute the judgment and that the intended appeal is not an afterthought since the applicants have proper grounds as per the annexed draft of memorandum of appeal. Further that the delay occasioned herein is not inordinate as to be inexcusable and that the respondent will not suffer any prejudice or any damage that is not capable of being compensated by way of costs.

Response 4. The plaintiff/ respondent filed a replying affidavit sworn by Geoffrey Kilonzoon the December 3, 2021.

5. He deposed that the applicant has not demonstrated the reasons for the delay in appealing on time and that the application has also been filed after inordinate and unreasonable delay. He also deposed that the right of appeal must be balanced with the right of the decree holder to enjoy the fruits of judgment and that the delay in lodging the appeal on time automatically means that the present application is an afterthought, meant to ensure the respondent does not execute. He further deposed that the applicant has not met the pre requisites of order 42 rule 6 of the Civil Procedure Rules and the applicant has not explained what loss if any will be suffered should the orders for stay fail to be granted hence substantial loss has not been demonstrated and proved.

Submissions 6. The applicant through her advocate Kimondo Gachoka & Company Advocates filed submissions on the December 17, 2021.

7. Counsel labored to state the reasons why the applicant did not file the appeal in time and I note the same reasons are stated in counsel’s supporting affidavit of which I need not replicate. He further submitted that the reason occasioning the failure to file appeal within time is excusable. He relied on the cases of Cecilia Wanja Wamwira Kerugoya Civil Appeal No 211 of 2013 (2018) eKLR, Nicholas Kiptoo Arap Korir Salat v IEBC & 7others (2014) eKLR, Kenya Tea Growers Association & Another v Kenya Planters & Agricultural Workers Union Civil Application Nai No 72 of 2001 and section 75G of the Civil Procedure Act.

8. On whether the applicant is deserving of stay of execution pending appeal, counsel reiterated that the applicant is ready and willing to issue a bank guarantee to this court for the entire decretal sum awarded in Garsen PMCC No 76 of 2019 from a reputable commercial Bank. Similarly, that order 42 rule 6 of the Civil Procedure Rules grants this court discretion to stay execution of decrees pending appeal. He relied on the case of Kenya Power & Lighting Company Ltd vs Rose Anyango & Another Misc Civil Application No 29 of 2020.

9. The respondent on the other hand through their advocate Wambua Kilonzo & Company Advocates filed submissions on the June 2, 2022.

10. On whether the court ought to extend time to allow the applicant to lodge the memorandum of appeal, counsel submitted that judgment was delivered on June 10, 2021 and the applicant was served on June 25, 2021 in which the applicant duly acknowledged. It is his submission that the applicant has not shown sufficient cause for not filing the appeal on time hence the provisions of section 79G of the Civil Procedure Act have not been met, he relied on the case of Thuita Mwangi v Kenya Airways Ltd (2003) eKLR.

11. Counsel submitted that this is a case of mere inaction and the same ought not to be visited upon the respondent. On this limb, he relied on the case of Dilpack Kenya Limited v William Muthama Kitonyi (2018) eKLR.

12. Finally, counsel submitted that the applicant has not met the conditions warranting stay as on the limb of substantial loss, the applicant must clearly state what loss if any, they stand to suffer and as it is, it is not indicated or explained what loss will be suffered should the orders for stay fail to be granted.

Analysis and Determination 13. I have considered the application, the response as well as the submissions by both parties.

14. What this court is being called upon to determine is whether the applicant has set out a case to warrant extension of time to file an appeal out of time and whether this court should issue an order for stay of execution of the judgment in Garsen CMCC No 76 of 2019.

15. According to the applicant, judgment was delivered on June 10, 2021 contrary to the court’s direction that the same would be delivered on May 20, 2021. Counsel also has not indicated when he received instructions to file the appeal in the matter. The respondent in rebuttal, stated that the applicant has not disclosed a reasonable cause for the delay.

16. Under section 79G of the Civil Procedure Act, the time for filing an appeal from judgment of the subordinate court to the High Court is 30 days. The section provides as follows;"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 a good and sufficient cause for not filing the appeal in time.”

17. In dealing with an application for extension of time before a court, the court ought to take into account several factors as observed by Odek JJA in Edith Gichungu Koine v Stephen Njagi Thoithi (2014) eKLR where the court had this to say:

18. Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this court including, 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, amongst others.”

19. The reason given in this application for the delay is that the lower court had directed that the judgment would be delivered on May 20, 2021 but instead delivered it on June 10, 2021 without issuing a judgment notice, and for this reason, they were unaware that the judgment had been delivered. I have had an opportunity to look at the memorandum of appeal as well as the judgement of the lower court and note that judgment was indeed delivered on the June 10, 2021 but what counsel of the applicant has not told this court is that on the June 17, 2021, he appeared before the same court and was granted stay of 30 days from that day and this was 7 days from the date when judgment was delivered.

20. Nonetheless, the delay is over four months, I have weighed the sentiments of both parties and I wish to point out that the discretion of this court to enlarge time for filing of a late appeal is unfettered. However, that discretion must be exercised judiciously and not capriciously. Similarly, the, ultimate goal and purpose of the justice system is to hear and determine disputes fully. It follows that no person who approaches the court rightly seeking an opportunity to ventilate his or her grievances should be locked out. Reasons or no reasons for the delay, the applicant is before the court seeking to be granted a chance to agitate her appeal challenging the judgment of the lower court. There is no evidence to demonstrate what prejudice the respondent will suffer if the applicant is granted extension of time. The delay is not inordinate.

21. Having said that, I hold that it would be in the interest of justice that the applicant is granted leave to file an appeal out of time against the judgment in Garsen CMCC No 76 of 2019 delivered on June 10, 2021.

22. For a court to order a stay of execution which amount to denying a successful party, even from enjoying the fruits of his or her judgment, the applicant must pass the hurdle on sufficient cause, substantial loss, appeal being rendered nugatory, and existence of compelling circumstances. The principles guiding the grant of stay of execution pending appeal are well settled. These principles are as expressly set out under order 42 rule 6 of the Civil Procedure Rules.

23. This court has been tasked to balance the competing interests of the applicant as against that of the respondent and at the same time allow the respondent to enjoy the fruits of the judgment on the other hand In those circumstances, the notice of motion dated July 12, 2021 be and is hereby allowed on condition that the appellant/applicant releases part of the decretal sum of Kshs 700,000/= to the respondent within forty-five (45) days from today’s date. It is so ordered.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 1ST DAY OF NOVEMBER, 2022. ...............................S M GITHINJIJUDGECourt; -Ruling read and signed in absence of the parties..................................S M GITHINJIJUDGENovember 1, 2022