[2022] KEHC 16555 (KLR)

Murangi v Murangi (Miscellaneous Application 29 of 2022) [2022] KEHC 16555 (KLR) (14 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16555 (KLR)

Republic of Kenya

In the High Court at Embu

Miscellaneous Application 29 of 2022

LM Njuguna, J

December 14, 2022

Between

Mary Rita Murangi

Applicant

and

Margaret Muthoni Murangi

Respondent

Ruling

1. Before this court is the application dated June 13, 2022 wherein the applicant sought for leave to appeal out of time against the whole judgment of Hon. J. Ndeng’eri delivered on November 25, 2021 and that the said leave do operate as a stay of proceedings.

2. The application is founded on the grounds on its face and further supported by the affidavit sworn by Mary Rita Murangi, the applicant herein. The applicant’s case is that she is dissatisfied with the said judgment and therefore, she applied for the proceedings on December 2, 2021 and that the same was supplied to her on April 14, 2022. That the period from the time the proceedings were applied to the time the same was supplied is a period of almost four months and the required period to lodge an appeal had already elapsed. In the same breadth, it was her case that she applied for a certificate of delay which was supplied to her on May 12, 2022 and as such, the time within which the appeal ought to have been lodged had since elapsed. It was her case that in the interest of justice, the application herein be allowed.

3. The respondent has opposed the application by way of a replying affidavit sworn by Morris Karigi on September 5, 2022. He deposed that the application herein is a nonstarter, unmerited, misconceived and purely meant to delay the respondent’s right to enjoy her fruits of the trial court’s judgment delivered on November 25, 2021. That contrary to the applicant’s allegation that she intends to appeal the said judgment, she did not attach a memorandum of appeal. It was deponed that the applicant was aware of the proceedings of the primary suit Embu Civil Case No. 94 of 2019 but chose to not to participate despite being served. It was her case that this is a clear case of an abuse of the court process for the same is an afterthought meant to disrupt the respondent’s enjoyment of the fruits of her judgment. That the application herein is devoid of merit for the reasons that it does not conform to the requirements for stay of execution as envisaged by Order 42 Rule 6 of the Civil Procedure Rules. It was his contention that the applicant has not demonstrated what she stands to suffer should execution proceed while on the other hand, the respondent will continue to suffer prejudice if the application is allowed. That in view of the foregoing, this court was urged to strike out the application herein since sufficient cause has not been demonstrated.

4. The applicant swore a further affidavit wherein she responded that her application has merits as it challenged denial of her constitutional right to be heard under article 50 (2) of the constitution of Kenya as the suit in Embu CMCC No. 94 of 2019 proceeded ex parte; and that she was not granted any chance to defend herself despite the fact that she was not served with the hearing notice. That the said impugned judgment was delivered without her notice and she was only served with notice of entry of judgment sometime in the beginning of this year. It was her case that she stands to suffer irreparable damage if the application herein is disallowed as she will be condemned to pay the decretal sum without having been given an opportunity to defend herself.

5. I have considered the application, the supporting affidavit, replying affidavits and submissions for and against the application as supported by cited authorities. In my view, the main issue for determination is whether the application has any merit and therefore whether the orders sought should be granted.

6. According to the applicant, she was dissatisfied with the determination of the trial court in that she submits that she has been condemned unheard. That it was imperative that this court grants the orders sought for the reason that the judgment was entered on November 25, 2021 and having been dissatisfied, she applied for copies of the proceedings on December 1, 2021 which was supplied on April 14, 2022 and further, she was issued with a certificate of delay on May 12, 2022 and by then, the time within which to lodge an appeal had already lapsed. She relied inter aliaon the case of Supreme Court of Kenya (M.K. Ibhahim & S.C. Wanjala SCJJ in Nicholas Kiptoo arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others).

7. She further stated that the delay in filing the appeal was as a result of the fact that the judgment was delivered in her absence. That her memorandum of appeal nuances that her intended appeal raises pertinent issues relating to the propriety of the judgment by the trial court on both facts and law. Reliance was thus placed on the case of Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR. It was further submitted that she stands to suffer irreparably should the application be declined while on the other hand, the respondent stands to suffer no prejudice which cannot be compensated by an award of damages if this application is allowed. Further that, the application has been brought without undue delay given that the application herein was filed barely 28 days after the applicant obtained the certificate of delay. In reference to costs, the same was submitted that the same depends on the discretion of the court. Therefore, it was her case that the application herein be granted.

8. The respondent submitted that, it was opposed to the application given that the applicant has sought an equitable remedy and as such, the motion is bound by the equitable principle that he who seeks equity must do equality. Reliance was placed on the case of Thuita Mwangi v Kenya Airways [2003] eKLR; that the discretion to extend time must be exercised within the established principles of the law and the factors to be considered when determining an application seeking leave to appeal out of time. That the impugned judgment was delivered on November 25, 2021 hence the 30 days window period within which the applicant was to file a memorandum of appeal lapsed on or about January 14, 2022 since time stops running between the period between the 21st day of December in any year and the 13th day of January in the year next following. That the instant application was filed on June 13, 2022 about 7 months later and the same cannot be said not to be inordinate.

9. It was her case that no memorandum of appeal was filed and served upon the respondent and the time within which the applicant could have filed the same lapsed by the time this application was filed. That no appeal has been filed against the judgment of the lower court and as such, it would be injusticiable to grant stay of execution pending an appeal that does not exist and the fact that there is no appeal filed, then it follows that the application has no legal basis. Further that, even after being issued with a certificate of delay on May 12, 2022 and once the certificate of delay was issued by the court, the applicant had from that day, a fresh period of 30 days to file the appeal which she did not do as a result, the application herein was considered as an afterthought.

10. On stay of execution, it was submitted that an applicant for stay of execution of a decree or order pending appeal is obliged to satisfy the conditions set out in Order 42 Rule 6(2) of the Civil Procedure Rules; and the case of Mohamed Salim t/a Choice Butchery v Nasserpuria Memon Jamat [2013] eKLR. On substantial loss, it was submitted in reliance on the case of James Wangalwa & another v Agnes Naliaka Chesoto. [2012] eKLR that a party seeking stay of execution pending appeal must demonstrate that he/she will suffer irreparable loss if the stay of execution is not granted; that in this case, the applicant has not demonstrated what substantial loss she will suffer. Reliance was placed on the case of Antoine Ndiaye v African Virtual University [2015] eKLR. Further, no security for costs has been given by the applicant herein and therefore, it was prayed that the orders sought can therefore not issue.

11. Under Section 79G of the Civil Procedure Act, time for filing an appeal from judgment of the subordinate court to the High Court is 30 days.

12. In this case, the impugned judgment was rendered on November 25, 2021. It follows that any appeal challenging that decision ought to have been filed within the 30 days as provided for by the law. The applicant has come before this court seeking to have the time enlarged and the said leave do operate as a stay of proceedings.

13. The Respondent’s counsel has viciously opposed the application stating that the same is an abuse and misuse of judicial process and an afterthought. Further that, the instant application was filed about 7 months late and the same is inordinate.

14. In Charles Karanja Kiiru v Charles Githinji Muigwa [2017] eKLR where the Respondent had delayed for 41 days before filing an appeal and where the High court enlarged time to enable the respondent file an appeal out of time, the appellant was aggrieved by the order enlarging time claiming that the learned Judge erred in law and fact by exercising his discretion and extending time for filing an appeal out of time yet no sufficient reason had been given to justify the same, the Court of Appeal cited this court’s decision in Wanjiru Mwangi & Another [2015] eKLR and APA Insurance Co. Ltd v Michael Kinyanjui Muturi [2016] eKLRin dismissing the appeal.

15. I will therefore entirely rely on the above Court of Appeal decision in determining the merits of this application whether the applicant should be granted stay of execution.

16. Under Section 79G of the Civil Procedure Act:“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 orderProvided 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.” [Emphasis added].

17. The Court of Appeal in the above case stated that whenever an application for extension of time is 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 thus:“Nevertheless, it ought to be guided by consideration of factors stated in many previous decision 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.”

18. The Court of Appeal further stated that there is also a duty imposed on courts to ensure that the factors considered are consonant with the overriding objective of civil proceedings litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the court.

19. In the case herein, the reason given for the delay is that the impugned judgment was entered on November 25, 2021 and having been dissatisfied, though the applicant applied for copies of the proceedings on December 1, 2021, the same were supplied on April 14, 2022 and further, she was issued with certificate of delay on May 12, 2022 and by then, time provided for by the statute for lodging an appeal had already elapsed.

20. Article 48 of the Constitution guarantees every person access to justice, in addition, under Article 50(1) of the Constitution, every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

21. The ultimate goal and purpose of the justice system is to hear and determine disputes fully. It follows that no person who has approached the court seeking an opportunity to ventilate their grievances should be locked out.

22. The respondent has submitted that this application is bad in law and an abuse of the court process. In my view, there is no evidence that the application is an afterthought or it’s an abuse of court process. Further, Courts have over time excused parties where such delay is not inordinate as is in this case and even in cases where there is inordinate delay, depending on the circumstances of each case and reasons for the delay, courts have accorded parties an opportunity to be heard on appeal. Furthermore, there is no evidence to demonstrate what prejudice the Respondent will suffer if the applicant is granted extension of time.

23. Though the Respondent has contended that no sufficient reason was given for the delay and further that she will be denied the opportunity to enjoy the fruits of the trial court’s judgment, in Belinda Mural & 9 Others v Amos Wainaina [1978] eKLR, the Court of Appeal – Law JA, citing the case of Shah H. Bharmal & Brothers v Kumar[1961]EA 679 held that:“Mistakes of a legal adviser may however amount to ‘sufficient cause under the East African Rule.”

24. No doubt, the discretion of this court to enlarge time for filing appeal out of time is unfettered. However, that discretion must be exercised judiciously and not capriciously. On the material placed before me and supported by the above decisions, I am satisfied that the delay herein is not inordinate or unreasonable. This is not to say that this court would condone or forgive inordinate delays but that it must do whatever is necessary to rectify mistakes where it serves the interests of justice.

25. The second limb of this application is that the said leave do operate as a stay of execution of the order, judgment of the trial court pending the hearing and determination of the appeal. The principles upon which the above prayer can be allowed are now well settled from the authorities from this court and from the superior courts. Generally stay of execution is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010. As a rule, for orders of stay of execution to be granted, the applicant must satisfy the conditions to wit;- that substantial loss may result to the Applicant unless the order is made; that the Application has been made without undue delay; and that such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant. [See Halai and Another v Thornton & Turpin (1963) Ltd [1990] KLR].

26. As for the likelihood to suffer substantial loss if the stay is not granted; the applicant submitted that she stands to suffer irreparably should the application be declined while on the other hand, the respondent stands to suffer no prejudice which cannot be compensated by an award of damages if this application is allowed. [SeeJames Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR ;-“The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory”.

27. As to the delay in bringing the application before this court, I note that the ruling in contention was delivered on November 25, 2021 and the application herein made on June 13, 2022. In my view, though the applicant delayed in bringing the application, the delay was explained.

28. As to the security, I note that the applicant has not provided security for the due performance of the decree but in the same breadth this court may pronounce itself on the same. I find that the condition has been satisfied by adopting the view of the court in the case of Butt v Rent Restriction Tribunal (supra) held that;-“….5. The court in exercising its powers under Order XLI rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”

29. In view of the foregoing, it is my considered view that the orders sought before this court ought to issue and therefore;i.The application herein is allowed.ii.The applicant to file and serve the memorandum of appeal within 21 days of delivery of this ruling.iii.Stay of execution of the decree is hereby issued on condition that the applicant deposits the decretal sum in court within 45 days from the date of this ruling.iv.The costs of the application shall abide the outcome of the appeal.

30. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 14TH DAY OF DECEMBER, 2022. L. NJUGUNAJUDGE……………………………………...for the Applicant……………………………………for the Respondent