[2022] KEHC 3297 (KLR)

Mutua v Mutua (Civil Miscellaneous Application 186 of 2020) [2022] KEHC 3297 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3297 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Miscellaneous Application 186 of 2020

OA Sewe, J

May 19, 2022

Between

Justus Mativo Mutua

Applicant

and

Justus Mativo Mutua

Respondent

Ruling

1. Before the court for determination is the Notice of Motion filed herein on September 10, 2020 by the applicant, Omar Obo. He moved the Court pursuant to sections 3A, 79G and 95 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, Order 22 Rule 22, Order 42 Rule 6, Order 50 Rule 6 and Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law, for orders that:(a)Spent(b)The court be pleased to extend time and grant leave to the applicants to lodge a Memorandum of Appeal out of time against the Judgment and Decree entered against the applicants by Hon. F. Kyambia, Senior Principal Magistrate in Mombasa CMCC No. 482 of 2017 on November 15, 2019;(c)The court be pleased to stay execution of the judgment and decree issued in Mombasa Chief Magistrates Civil Case No. 482 of 2017 pending the hearing and determination of the application (spent).(d)The court be pleased to stay execution of the judgment and decree in Mombasa Chief Magistrates Civil Case No. 482 of 2017 pending the hearing and determination of the intended appeal;(e)That the application be heard inter partes on such date and time as the court may direct; (spent)(f)The court be pleased to issue any other orders that it may deem fit, just and expedient in the interests of justice;(g)The costs of the application be in the cause.

2. The application was premised on the grounds that judgment was delivered on November 15, 2019 by the lower court; and that the 30 days within which an appeal was to be filed have lapsed. It was further stated that the applicant is aggrieved by the judgment and is desirous of filing an appeal; but cannot do so without the leave of the court. It was also stated that the application has been filed in good faith; and that the delay was inadvertent. In thesupporting affidavit sworn by Isabella Nyambura, legal counsel for Directline Assurance Company Ltd, she averred that instructions to appeal were given after the 30 days period for appeal had lapsed; that the appeal is not an afterthought but is one that is arguable; and that the applicant is ready, able and willing to furnish such security as the court may order, including depositing the full amount in a joint interest earning account in the names of both advocates acting for both parties. She annexed a draft Memorandum of Appeal to her supporting affidavit, in addition to the Decree of the lower court as well as the Certificate of Costs issued in the respondent’s favour, among other documents.

3. In response to the application, the respondent relied on herreplying affidavit sworn on October 12, 2020 by Kariuki Gathuthi, Advocate. In his view, the application is not only frivolous, but is also an abuse of the process of the court. He averred that no action was taken by the applicant until after execution commenced; and therefore that the intended appeal is an afterthought intended only to obstruct the respondent in the enjoyment of the fruits of his judgment. Mr. Gathuthi further averred that the discretionary powers of the court are exercised judicially and ought not to be invoked if the end result would be to the prejudice of any party. He therefore averred that the circumstances hereof are such that it is in the interest of justice that the respondent be allowed to proceed with execution and thereby enjoy the fruits of his judgment.

4. An order was thereafter made on November 15, 2021that the application be canvassed by way of written submissions. While the applicant’s written submissions dated November 12, 2021were filed herein on November 15, 2021, the respondent opted to rely entirely on the replying affidavitfiled by Mr. Kariuki Gathuthi. Mr. Nyabero urged the Courtto find that sufficient cause has been shown for the delay. He relied on Feroz Begum Qureshi &another v Maganbhai Patel &others[1964] EA 633; Daphne Parry v Murray Alexander Carson[1963] EA 546; Dilpack Kenya Limited v William Muthamu Kitonyi [2018] eKLR and First American Bank of Kenya v Gulab P Shah[2002] 1 EA 65 for the applicable principles guiding the exercise of discretion is such situations as the instant one.

5. Turning now to the merits of the application, I have given due consideration to the grounds set out on the face of the application and the arguments advanced in the written submissions filed herein by counsel for the applicant. The application is two-pronged in that, it not only seeks leave to appeal out of time, but also prays for an order of stay of execution pending appeal. Its brief background is that the respondent sued the applicant before the lower court in Mombasa Chief Magistrate’s Civil Case No. 482 of 2017: Justus Mativo Mutua v Omar Obo for general and special damages in respect of injuries sustained in a road traffic accident. Judgment was passed therein in the respondent’s favour on November 15, 2019 in the sum of Kshs. 300,000/=, being general damages and Kshs. 2,000/= special damages on the basis of 100% liability.

6. The applicant now contends that he is aggrieved by that decision and wishes to file an appeal but cannot do so without leave, granted that the appeal window has been shut to him by operation of the law. Indeed, section 79G of the Civil Procedure Act, provides that:“Every appeal from a subordinate court to the High Court shall be filed within a period of 30 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 preparation and delivery to the appellant of a copy of the decree or order:

7. 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."

8. Thus, applicant was obliged to demonstrate that he had good and sufficient cause for not filing his appeal within the period prescribed by section 79G of the Civil Procedure Act, namely:(a)whether there is a good and reasonable explanation for the delay;(b)whether the application has been brought without undue delay;(c)whether the proposed appeal is arguable, and(d)whether any prejudice will be suffered by Respondent.

8. Thus, in Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi, which was followed in Annah Mwihaki Wairuru vs. Hannah Wanja Wairuru(supra) the Court of Appeal held, albeit in an application under Rule 5(2)(b) of the Court of Appeal Rules, that:“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. In the premises, the first question to pose for determination is whether the applicant has satisfied the court that he has good and sufficient cause for not filing his appeal within the period stipulated in section 79G aforementioned. The only explanation offered herein by the applicant’s counsel at paragraph 6 of her affidavit is that the they received fresh instructions to appeal after the time stipulated period of 30 days had lapsed. The affidavit is completely silent as to why no action was taken in good time; especially in the face of the averments by counsel for the respondent that Notice of Judgment was duly served on the applicant’s counsel on December 13, 2019. That the applicant only woke up on September 10, 2020 and realized that there was need to appeal is incredible and therefore cannot be countenanced.

10. [10] Turning now to the second aspect of the application, which is the prayer for stay of execution pending appeal, the applicant relied on Order 42 Rule 6 of the Civil Procedure Rules. It provides that:“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order, but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside..."

11. At this stage, it must be appreciated that the respondent, having been successful in her litigation, is entitled to the fruits of his judgment. Thus, it is useful to bear in mind the apt expressions made in Machira T/A Machira & Co Advocates v East African Standard (No 2)[2002] KLR 63, that:“The ordinary principle is that a successful party is entitled to the fruits of his judgment or any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court."

12. In the premises, an applicant for stay of execution of decree or order pending appeal is under obligation to satisfy the conditions set out in Rule 6(2) of Order 42 aforementioned, namely:(a)that substantial loss may result to the applicant unless the order is made;(b)that the application has been made without unreasonable delay.(c)that such security as the court orders for the due performance of such decree or order as may ultimately be binding on the applicant has been given.

13. No explanation at all was proffered by the applicant for the delay between November 15, 2019 and September 10, 2020 when the instant application was filed. I am therefore neither convinced that the application has been brought without unreasonable delay, nor that substantial loss may be visited on the applicant unless the stay order is made. Indeed, no justification at all has been given for the applicant’s indolence for almost 10 months.

14. In the result, I find no merit in the applicant’s undated application filed herein on September 10, 2020. The same is hereby dismissed with costs.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 19TH DAY OF MAY 2022. OLGA SEWEJUDGE