[2023] KEHC 25175 (KLR)

Murota v Mbuko (Miscellaneous Civil Application E023 of 2023) [2023] KEHC 25175 (KLR) (7 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25175 (KLR)

Republic of Kenya

In the High Court at Chuka

Miscellaneous Civil Application E023 of 2023

LW Gitari, J

November 7, 2023

Between

Martin Murota

Applicant

and

Nerrisa Mbuko

Respondent

Ruling

1. By a Notice of Motion application dated 7th September, 2023 and filed on 15th September, 2023, the Applicant prays for orders that this Honourable Court be pleased to grant leave to the Applicant to appeal out of time against the judgment of the Honourable Joyce Gandani – Chuka Magistrate Court Civil Suit No. 84 of 2020 delivered on 15th February, 2023.

2. In addition, the Applicant prays that this Court be pleased to stay execution of the judgment and decree in the said suit before the lower court pending the hearing and determination of the intended/proposed appeal. The Applicant also prays that the costs of this Application to abide the outcome of the intended Appeal.

3. The Application is brought under the provisions of Sections 3A, 79G, and 95 of the Civil Procedure Act (cap 21), Article 159(2)(d) of the Constitution of Kenya 2010, and order 22, rule 22, order 42, rule 6, order 50, rule 6, and order 51, rule 1 and 3 of the Civil Procedure Rules 2010.

4. The application is premised on the grounds on the face of it and is supported by the affidavit sworn by the Applicant on 7th September, 2023.

5. The gist of the Application is that Judgment in Chuka Magistrate Court Civil Suit No. 84 of 2020 was delivered on 15th February, 2023 and the 30days within which an appeal was to be filed has lapsed. The Applicant claims that he is aggrieved by the said judgment on quantum and intends to appeal against the same.

6. According to the Applicant, the delay to lodge the intended appeal is excusable as it is neither inordinate nor deliberate. That the Applicant issued instructions to his advocates to appeal against the said judgment on 25th August, 2023. Further, that the delay was occasioned by the unavailability of a copy of the judgment of the court to enable the Applicant to make an informed decision on the judgment as well as the Respondent’s failure to serve the Applicant with the judgment notice hence the judgment was delivered ex-parte without the knowledge and in the absence of the Applicant. The Applicant thus claims that the inadvertent delay in filing the appeal on time had nothing to do with him and as such, he should not be penalized for it.

7. The Applicant further claims that he has an arguable appeal which has high chances of success as evidenced by the draft Memorandum of Appeal annexed to his affidavit in support of the present application. That the appeal will be rendered nugatory unless the present application is allowed. In addition, that the Respondent will not suffer any prejudice or any damage that cannot be compensated by way of costs if this Application is allowed. These grounds are reiterated in the supporting affidavit of the applicant. He further depones that he is ready and willing to provide security.

8. The Application is opposed by the Respondent vide her Replying Affidavit that she swore on 26th September, 2023. She depones that the entire application is a violation of equitable doctrines, an abuse of court process, and that it is designed to frustrate the course of justice and use this Court to oust her right to finality in litigation. Further, that contrary to the Applicant’s claim, there is no evidence to show that the efforts made by the Applicant to obtain a copy of the impugned judgment from the court’s registry. According to the Respondent, the delay in filing the present application is inordinately long and in the absence of proof of the reason for delay, the Applicant’s indolence or negligence should oust them from the seat of equity.

9. The Respondent further denies that the intended appeal has a high chance of success as claimed by the Applicant. According to the Respondent, the grounds in the intended appeal are silent on the apportionment of liability by the trial court and only challenge the assessment of quantum of damages by the trial magistrate. According to the Respondent, the trial magistrate quantification of the award of damages was within the magistrate’s discretion was done lawfully in exercise of the magistrate’s judicial function. The Respondent further claims that the application is prejudicial to her as the prosecution of the trial suit has occasioned her much expenditure in time, money and loss of opportunity. The Respondent thus urges this Court to strike out the application and award her costs of the same.

10. I have considered the present application, the grounds in support thereof and the rival affidavits by the parties in support of and against the application as well as the submissions. The main issue for determination is whether the application is merited. That is, whether the Applicant is entitled to the reliefs sought in the application.

Analysis a. On whether the Applicant is entitled to leave to file his intended appeal out of time 11. Section 79G of the Civil Procedure Act is the operative legal provision in answering the question whether the prayer to enlarge time to file an appeal is merited. The said 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 good and sufficient cause for not filing the appeal in time.”

12. The extension of time is an equitable remedy reserved for a deserving applicant. The onus is thus on the Applicant to demonstrate a good and sufficient cause for not filing the appeal in time, failure to which the order of extension of time ought not to be granted. The factors that a court should consider in such a case were highlighted in the case of Mombasa County Government v. Kenya Ferry Services & Anor (2019) eKLR where the Supreme Court held as follows:“25]Concerning extension of time, this Court has already set the guiding principles in the Nick Salat Case as follows:“… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.… we derive the following as the underlying principles that a Court should consider in exercising such discretion: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 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. where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;5. whether there will be any prejudice suffered by the respondents, if extension is granted;6. whether the application has been brought without undue delay; and7. whether in certain cases, like election petitions, public interest should be a consideration for extending time”

13. Similarly, in Thuita MwangivKenya Airways Ltd [2003] eKLR, the Court of Appeal suggested some of the factors that aid Courts in exercising the discretion whether to extend time to file an appeal out of time. These include the following:i.The period of delay;ii.The reason for the delay;iii.The arguability of the appeal;iv.The degree of prejudice which could be suffered by the Respondent if the extension is granted;v.The importance of compliance with time limits to the particular litigation or issue; andvi.The effect if any on the administration of justice or public interest if any is involved.

14. In this case, the impugned judgment was delivered on 15th February, 2023 while the present application was filed on 15th September, 2023 which is six (6) months after the lapse of the 30 days that the Appellant was to exercise his right of appeal. The Applicant claims that the delay was occasioned by the unavailability of a copy of the judgment of the trial court. There is however no evidence on record to show that the applicant was not indolent and indeed followed up on the judgment with the registry. Furthermore, as this Court has earlier observed, the six (6) months delay was inordinate. The court exercised discretion in granting leave to appeal out of time. Courts in deciding whether or not to grant a stay is enjoined to give effect to overriding objectives of the Civil Procedure Act (Cap 21 Laws of Kenya) in the exercise of its powers under the Act. Section 1A (2) of the Act provides that:“the court shall, in the exercise of its powers under this Act or the interpretation of its powers under this Act or the interpretation of its provisions seek to give effect to the overriding objective.”Under Section 1B the objectives are aimed ‘inter alia’ to achieve, “the just determination of proceedings, efficient disposal of the business of the court, the efficient use of the available judicial and administrative resources, the timely disposal of the proceedings and all other proceedings at a cost affordable by the respective parties.”An applicant for stay of execution of a decree or order is supposed to satisfy the conditions set out under order 42 rule 6 (2) (supra).“In RWW –v- EKW (2019) eKLR the court stated that the purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undisputed right of appeal are safeguarded and the appeal if successful is not rendered nugatory.”In this case the respondent has not given any material as to his ability to repay the decretal sum in case the appeal succeeds. In view of the amount involved the applicant is likely to suffer substantial loss if stay is not ordered and the appeal succeeds.

15. The applicant had offered to provide security by a bank guarantee. This court directed that the applicant deposits the decretal sum in court as well as the Auctioneers fees. The applicant did comply and deposited the money in court.I find that the applicant has offered security and has therefore fulfilled the requirements for the grant of stay of execution and in line with the overriding objectives of the Civil Procedure Act, (supra). I am inclined to grant the applicant leave to appeal out of time.

On whether the Applicant is entitled to an order of stay of execution of the impugned judgment 16. An application for stay invokes the discretionary powers of this court under order 42 rule 6(1) of the Civil Procedure Rules, 2010 that empowers the court to stay execution, either of its judgment or that of a court whose decision is being appealed from, pending appeal.

17. The conditions to be met before stay is granted are provided for under order 42 rule 6(2) which provides that:“No order for stay of execution shall be made under sub rule (1) unless–a.the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; andb.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.”

18. The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 gave guidance on how a court should exercise discretion and held that:-“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.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.”

19. Substantial loss is an issue of fact that musts be raised by the Applicant and supported by evidence. In this case, the Applicant has not demonstrated the substantial loss he will suffer should the court disallow his prayer for stay. However, the total decretal sum arising from the impugned judgment is Kshs. 1,005,000/= plus costs and interests. In my view, the total amount being claimed from the Applicant in fulfillment of the impugned judgment is quite substantial. As such, I am satisfied that the execution of the decree will cause the Applicant substantial loss.

20. Order 42, Rule 6 of the Civil Procedure Rules requires the provision of security as a pre-condition for allowing a request to stay execution. In this case, the Applicant has already deposited the decretal sum of Kshs. 1,292,513/= and Kshs. 165,468/= as auctioneers fees. In my view, the Applicant has provided reasonable security to warrant this Court to issue an order of stay of execution.

Conclusion 21. The upshot is that for the reasons stated the Applicant’s Notice of Motion application dated 7th September, 2023 is merited. I note that the appeal is on the quantum of damages awarded by the trial court. The applicant has deposited the decretal sum in court.I therefore order as follows:-1. There shall be stay of execution of the Judgment and decree in Chuka Chief Magistrate’s Court Civil Suit No. 84 of 2020. 2.Leave is granted to the applicant to file the appeal out of time.3. The appeal be filed within 14 days4. Costs in the cause.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 7TH DAY OF NOVEMBER 2023. L.W. GITARIJUDGE