[2022] KEHC 14467 (KLR)

Muje t/a Gamunje Limited & another v Mutie (Civil Application E209 of 2022) [2022] KEHC 14467 (KLR) (Civ) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14467 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Application E209 of 2022

JN Mulwa, J

October 13, 2022

Between

Muje t/a Gamunje Limited

1st Applicant

Samson Njoroge Kinyanjui

2nd Applicant

and

Martin Mutie

Respondent

Ruling

1. This is a ruling in respect to the applicants’ notice of motion dated March 30, 2022 brought under section 79 and 3A, order 42 rule 6 of the Civil Procedure Act. The applicants seek the following orders:1. Spent.

2. Spent.

3. That this honourable court do order that the proceedings in Nairobi CMCC No 6863 of 2020: Martin Mutie v Muje T/A Garmunje Ltd & another be stayed pending the hearing and determination of the intended appeal.

4. That this honourable court do grant the applicant leave to file an appeal out of time against the ruling and order of Hon P. M Wambugu made in Nairobi CMCC No 6863 of 2020: Martin Mutie v Muje T/A Garmunje Limited and another on January 18, 2022.

5. That the costs of this application be provided for.

2. The application is based on the supporting and further affidavits of Geoffrey Maina, the applicants’ advocate. he avers that, the applicants are dissatisfied with the ruling of January 18, 2022, in which its defence filed out of time was struck out and, is desirous of appealing against the same but the time within which to do so has lapsed. He contends that, the delay in filing the appeal arose from the fact that, the matter was not cause listed on the date it came up for ruling and thus the ruling was delivered in the absence of both parties. He got to know about the ruling from the e-portal on January 27, 2022, whereupon he immediately sought to peruse the court file but the same could not be traced until March 10, 2022. Thereafter, he proceeded to seek instructions on the filing of an appeal which he believes has good chances of success. He also believes that if the proceedings in the lower court are not stayed, the suit will proceed to formal proof without the applicants being accorded a chance to defend its case thus rendering the intended appeal moot.

3. The application was opposed by way of a replying affidavit sworn by Martin Mutie, the respondent herein. He avers that, the applicants’ application is hopeless and is merely a time-wasting venture as the appeal has nil chances of success. He also faulted the applicants for delaying the filing of the instant application by a further period of 20 days upon tracing the court file.

4. In their submissions, the applicants reiterated his averments above and contended that, a great injustice will be occasioned if the orders sought are declined. The respondent on his part also reiterated that, the orders sought are not necessary in the circumstances of this case.Whether the applicants have made out a case for enlargement of time to appeal against the ruling of January 18, 2022?

5. Appeals from the subordinate court are supposed to be filed within 30 days from the date of the decision of the lower court although the said timeline is not cast on stone. Section 75G of the Civil Procedure Act provides thus:“79G. 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.”

6. Section 95 of the Civil Procedure Act also donates to court the power to extend the period fixed for any action. It provides thus: -“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”

7. In Nicholas Kiptoo Korir Arap Salat v IEBC & 7 others [2014] eKLR, the Supreme Court set down the principles for extension of time as follows:“1. Extension of time is not a right of any 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 a case to case basis;

4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;

5. Whether there will be any prejudice suffered by the respondent if the extension is granted;

6. Whether the application has been brought without undue delay.

7. ...”

8. The Court of Appeal also set down the principles to be considered in exercising the court’s discretion on whether or not to enlarge time to file appeal in the case ofLeo Sila Mutiso v Rose Hellen Wangeri Mwangi civil application No 255 of 1997. It held as follows:-“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general, the matters which this court takes into account in deciding whether to grant an extension of time are first, the length of the delay. Secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.”

9. As regards the length and reason for delay, it is not disputed that, the ruling in the lower court was delivered on January 18, 2022 and the instant application was filed on March 30, 2022, which was beyond the 30 days stipulated under section 79G of the Civil Procedure Act. The explanation by the applicants’ advocate, that the impugned ruling was delivered in the absence of both parties due to the failure to cause list the same has not been controverted. Further, counsel for the applicants has duly annexed a letter dated January 28, 2022, addressed to the Executive Officer of Milimani Commercial Courts requesting that they be allowed to peruse the subject lower court file to enable them know the orders made in the impugned ruling. Additionally, I find sensible the explanation that the applicants’ advocate had to seek instructions on the filing of the appeal upon tracing and perusing the court file. In the premises, I find that the delay was not so inordinate as to deny the applicants an opportunity to exercise its constitutional right of appeal to this court. I also find that the delay has been satisfactorily explained.

10. As regards the chances of success of the intended appeal, I note that, parties have tendered lengthy submissions in support of their respective positions. However, the court cannot delve into the same at this stage save to say that from the annexed draft memorandum of appeal, I am satisfied that the intended appeal is not frivolous but arguable.

11. Lastly, I find that in the circumstances of this case, the respondent does not stand to suffer any prejudice that cannot be compensated by way of costs.

12. For the foregoing, I find that the prayer for leave to appeal out of time is merited. The same is hereby allowed on the terms to be stated in the concluding paragraph of this ruling.Whether there should be a stay of proceedings in the lower court pending the hearing and determination of the intended appeal.

13. The powers to stay proceedings pending appeal is derived from both order 42 rule 6 of the Civil Procedure Rules as well the inherent jurisdiction reserved under section 3A of the Civil Procedure Act. Notably however, the test for stay of proceedings is very high and stringent. Halsbury’s Law of England, 4th Edition Vol 37 page 330 and 332, states that:“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue”

14. In the case of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No 43 of 2000, Ringera J. stated thus;“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice...the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”

15. I have already found hereinabove that the applicants’ intended appeal is not a frivolous one. Since the lower court case has now reached the formal proof stage, I am convinced that if the proceedings are not stayed and the intended appeal eventually succeeds, it would amount to a waste of the valuable judicial time. In the premises, it is my considered view that it is prudent to have the lower court proceedings in Nairobi CMCC No 6863 of 2020: Martin Mutie v Muje T/A Garmunje Ltd & another stayed pending the hearing and determination of the intended appeal.

Conclusion 16. In the upshot, I a find that, the application dated March 30, 2022 is merited and I allow it on the following terms: -a.The applicants shall file and serve their memorandum of appeal within seven (7) days from the date of this ruling.b.The applicants are directed to file and serve the record of appeal within sixty (60) days of this ruling and return for mention for compliance on the January 24, 2023. c.There shall be a stay of proceedings in Nairobi CMCC No 6863 of 2020: Martin Mutie v Muje T/A Garmunje Ltd & another pending the hearing and determination of the intended appeal.d.The costs of this application shall abide the outcome of the appeal.

Orders Accordingly.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 13THDAY OF OCTOBER, 2022. J. N. MULWAJUDGE