[2023] KEHC 27223 (KLR)

Moses v Kilonzo & another (Civil Appeal E130 of 2023) [2023] KEHC 27223 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27223 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E130 of 2023

DKN Magare, J

December 14, 2023

Between

Juma Moses

Applicant

and

Julietta Mutunga Kilonzo

1st Respondent

Musyoka Muthoka

2nd Respondent

Ruling

1. This is a Ruling over an Application dated 7/6/2023 and amended on 7/7/2023. The prayers sought are as follows: -a.That a conditional stay of judgement and decree originating from the Judgement of Honurable E. Muchoki, SRM delivered on 18th January 2023 in Mombasa CMCC No.1888 of 2012 pending the hearing and determination of the Applicant’s Appeal.

2. The grounds upon which the Application is made is that the Applicant intends to appeal against the judgement of the Trial Court awarding Kshs. 151,500/= to the Respondents.

3. Further, it was stated that 1st Respondent had already issued warrants of attachment and sale of the Applicant’s goods and there was thus eminent danger of execution and which would render the intended Appeal academic.

4. The reason for the amendment is stated that it had come to the attention of the Applicant after filing the Application that in fact the former advocates of the Applicant had never lodged the Memorandum of Appeal.

5. The 1st Respondent filed Grounds of Opposition and Replying Affidavit dated 29th September 2023.

6. The Application as amended was opposed. It was stated that the Application was bad for being amended without leave of court and defective since the Supporting Affidavit was amended.

Submissions 7. The Applicant filed written submissions dated 12th July 2023.

8. It was submitted that substantial loss would occur to the Applicant as stipulated under order 42 rule 6 of the Civil Procedure Rules of execution were to be levied in the absence of stay order and as such the Application ought to be allowed.

9. The Applicant also urged the court to apply discretion in its favour not to prevent an Appeal which was as of right. Reliance was placed on the case of Butt v Rent Restriction Tribunal (1982) KLR 417 and Century Oil Trading Ci Ltd v Kenya Shell Limited.

10. It was submitted that the Appeal would thus be rendered nugatory of execution proceed.

11. Counsel further submitted that the Application was made without undue delay.

12. Further, that the mistakes of counsel ought not be visited on the innocent client as was held in Stecol Corporation v Susan Awuor (2021) eKLR.

13. I was urged to disallowed the Application.

14. On their part, the 1st Respondent filed submissions dated 27th September 2023.

15. Counsel submitted that the Application was bad for being amended without leave of court and ought to be struck out. Reliance was placed on order 8 rule 3 (5)(1) of the Civil Procedure Rules to canvass the argument that a Notice of Motion was not a pleading to be amended and relied on the case of Estate of NMM (Deceased) Succession No. 342 of 1994.

16. Therefore, it was submitted that the Applicant had not shown sufficient cause for the court to exercise its discretion.

17. It was also submitted that the Applicant had not demonstrated any substantial loss to be suffered and it is the 1st Respondent who would be prejudiced.

18. Further, that no security for costs was furnished to entitle the Applicant to stay of execution as stated in Wycliffe Sikuku Walusaka v Philip Kaita Wekesa (2020) eKLR.

19. I was urged to dismiss the Application.

Analysis 20. The issue before me is whether the delay in lodging a Memorandum of Appeal has been satisfactorily explained. If the reason for delay is not sufficient, then the issue as to whether stay of execution should be granted will not fall for determination because there will be no Appeal.

21. Waki, JA in Seventh Day Adventist Church East Africa Ltd. & Another v M/S Masosa Construction Company Civil Application No. Nai. 349 of 2005 held that:“As the discretion to extend time is unfettered, there is no limit to the number of factors the Court would consider so long as they are relevant; the period of delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the Respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with the time limits, the resources of the parties, whether the matter raises issues of public importance are all relevant but not exhaustive factors…In an application for extension of time, each case must be decided on its own peculiar facts and circumstances and it is neither feasible nor reasonable to lay down a rigid yardstick for measuring periods of delay as explanations for such delays are as many and varied as the cases themselves…The ruling striking out the appeal is not only necessary for exhibiting to the application for extension of time but also for consultations between the applicant’s counsel and their clients and the fact that the ruling was returned to Nairobi for corrections is a reasonable explanation for the delay… Where the Respondent has already recovered all the decretal sum and costs attendant to the litigation, the right of appeal being a strong right which is rivalled only to the right to enjoy the fruits of judgement, no prejudice would be caused to the respondent who has enjoyed his rights in full if an opportunity is given to the applicants to enjoy theirs too, even if it is on a matter of principle.”

22. I have perused the reasons for the delay in the Application and the Supporting Affidavit. The Applicant states that he was under impression that the former advocates had filed the Memorandum of Appeal only to learn later that they had not. That is why he sought to amend the Notice of Motion Application to bring this fact to light. It is imperative to note the Supreme Court of Kenya decision (M.K. Ibrahim & S.C. Wanjala SCJJ) in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR where the learned Judges held as follows:-“(1)Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.(2)A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court.(3)Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis.(4)Whether there is reasonable reason for the delay. The delay should be explained to the satisfaction of the court.

23. In Dilpack Kenya Limited v William Muthama Kitonyi [2018] eKLR Odunga J. observed that:-“In an application for extension of time, where the Court is being asked to exercise discretion, there must be some material before the Court to enable its discretion to be so exercised. Once there is non-compliance, the burden is upon the party seeking indulgence to satisfy the court why the discretion should nevertheless be exercised in his favour and the rule is that where there is no explanation, there shall be no indulgence. See Ratman v Cumarasamy[1964] 3 All ER 933; Savill v Southend Health Authority[1995] 1 WLR 1254 at 1259.

24. It follows therefore that the Applicants explanation for the delay is key in guiding the Court’s exercise of discretion on the issue of leave to appeal out of time.

25. It is self-evidence that the Judgment was available for the parties on the day of delivery on 18th January 2023 or soon thereafter. The copies were not sought by the Applicant. No letter was annexed seeking the judgment or paying for the same.

26. Further, this Application was filed about 6 months after the delivery of the impugned Judgment. The Applicant was under duty to show the reasons for delay. However short the period of delay, it must be explained. The court was not given a satisfactory explanation for the delay. There was no evidence of the need for the copy of judgment and the request for the same. A copy of judgment cannot be supplied though magic. The same ought to have been paid for. I note the judgment was not typed. The reason given that the former advocates had not acted within the Appeal time is not plausible. It has not been explained when the change of advocates took effect. In Alfred Iduvagwa Savatia v Nandi Tea Estate & another [2018] eKLR J. Mohammed JA. cited Aganyanya, JA in Monica Malel & Another v R, Eldoret Civil Application No. Nai 246 of 2008 where the Learned Judge stated;-“When a reason is proposed to show why there was a delay in filing an appeal it must be specific and not based on guess work as counsel for the applicants appears to show …. the applicants are not quite sure of why the delay in filing the notice of appeal within the prescribed period occurred, which amounts to saying that no valid reason has been offered for such delay.”

27. Section 79 G of the Civil Procedure Act provides as doth: -“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.”

28. It is not demonstrated what the former advocates had not done that lead to the delay on filing the Memorandum of Appeal. A copy of judgment is not necessary at the time of filing the Memorandum of Appeal. In any case, the court below has not certified the time required for preparation and delivery of the judgment. The ground is thus neither plausible nor tenable.

29. The Applicant failed to give a plausible reason for the delay. In the case of John Martin Muchiri Mugo v British-American Insurance Company (K) Limited [2018] eKLR, justice P.J.O. OTIENO, stated as doth: -“From the narrative, the applicant allegedly became aware of the delivery of judgment on 22/6/2022. The Applicant sat on their rights till November, 2022 when they filed this application. There is no plausible explanation for the delay. I am thus not satisfied that there is explainable delay.The Applicant delayed for over 6 months. The delay is inordinate and has not been explained. There is absolutely no evidence that judgment was applied for. Further, the issue of lack of instructions cannot be true. The advocate has not indicated when they sought the instructions they were waiting for. A delay over proceedings can only occur where the same have been applied for. A delay of over months has not been explained and as such a delay is unexplained, inexcusable and inordinate. As was held in Hamam Singh & Others v Mistri[1971] EA 122:“….in relation to applications to this court for leave to appeal out of time, it has been held that mistakes of a legal advisor may amount to sufficient cause but not inordinate delay on his part...”

30. Therefore, in my view, without a valid reason, this court has no jurisdiction to extend time. It is not manna to dish out. It is exercise of discretion. Unless the court is properly moved, it has no power to exercise discretion. It is not by whim but though judicious consideration that such an application is considered.

31. The factors to consider in dealing with such an application are: -a.The length of delay.b.The reason for delay.c.The animus of the applicant.d.The prejudice to the Respondent.

32. The Applicant has not explained the delay. It is my considered opinion that the 4 factors above are sequential. Therefore, one must fulfil each as you move to the next. If the delay is inordinate, in may not be necessary to go to the reason for delay. When the delay is reasonable, there must be a real and genuine reason for delay.

33. Where there is doubt, either way, the court can then exercise discretion one way or another. The court cannot find that the delay is inexcusable, inordinate and no reason is given and then, out of sheer whims and fiat, extend time. That makes litigation unpredictable and unending.

34. In our court system, delay is usually documented. Without documentation, it never happened. For example, a lost file where there is no record of follow up, is not lost. When applying for proceedings, they must first be as of necessity, a letter bespeaking the proceedings and payment of deposit. Without such, proceedings were never requested. The raison d’etre for payment is to enable the court prioritize according to payment and only serious applicants for proceedings. Without payment, there are no proceedings being sought. Further, proceedings must be formally sought, even where the same were requested for in court, the registry must be moved and follow ups be done.

35. In this matter, the reasons for the delay are strange. There is not record of how the current advocates came on record after judgement but refence is made to former advocate did not lodge the Appeal in time. It is also not shown the manner in which inaction by a former advocate was a mistake. It could be intentional inaction. Further, request for a copy of judgment was not made at all. There is therefore no explanation for not filing a Memorandum of Appeal. The Applicant was clearly indolent. In Salome Alice Akinyi v Aridempta Veronica Ooko & another [2019] eKLR, Justice J Kamau stated as follows regarding the issue of vigilance: -“24. It is correct as the Respondents submitted that “equity aids the vigilant and not the indolent.” However, it was the view of this court that although the Applicant had delayed in filing her appeal, the delay of four (4) months in bringing the application seeking leave to file an application out of time was not inordinate.”

36. An appeal can thus be made even if a formal decree had not been formally extracted. A decree includes a judgment. The only thing the Applicant could have done is to pay and collect the judgment, which was available from January 2023.

37. The Applicant delayed for over 6 months. The reason given is not genuine and has not been explained. It cannot be said to be an oversight. The Applicant filed the Notice of Motion and then amended it on what is said to be upon realizing that the Memorandum of Appeal was never filed. this realization was after 30 days from 7th June 2023 to 7th July 2023 when they filed the amended Application. I note that the Court in Asike-Makhandia J in Gerald Kithu Muchanje v Catherine Muthoni Ngare & another[2020] eKLR stated that:-“There is no maximum or minimum period of delay set out in law. However, a prolonged and inordinate delay is more likely than not to disentitle the applicant of such leave. Likewise, the reason or reasons for the delay must be reasonable and plausible. In Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR this Court stated:-“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.”

38. Given the circumstances of the case, I have also to consider both parties. The Respondent is entitled to the fruits of the judgment. The injustice to the Respondent if the Application were to be allowed exceeds the prejudice to the Applicant is the Application is disallowed. In Harris Horn Senior, Harris Horn Junior v Vijay Morjaria Nyeri Civil Appeal No. 223 of 2007 when confronted with similar arguments, the Court made observations therein inter alia as follows:(32)As for the need to do justice to the parties before it, we have no doubt that this is the core business of the Court. However, a court of law cannot ignore principles of substantive law or case law governing the particular aspect of justice sought from its seat. Its primary role is to ensure that the justice handed out is kept anchored on both the law and the facts of each case.”

39. This is a proper application to dismiss with costs.

Determination 40. In the circumstances I make the following orders: -a.The Application dated 9/11/2023 lacks merit and is accordingly dismissed.b.The Appeal is consequently struck out.c.The 1st Respondent shall have costs assessed at Kshs. 50,000/-d.The file is closed.

DELIVERED, DATED AND AT MOMBASA ON THIS 14TH DAY OF DECEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-No appearance for partiesCourt Assistant - Brian