[2023] KEHC 27404 (KLR)

N v LOO (A Minor Suing Through Next Friend FOO) (Civil Appeal E044 of 2023) [2023] KEHC 27404 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27404 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E044 of 2023

DO Chepkwony, J

November 9, 2023

Between

RWN

Applicant

and

LOO (A Minor Suing Through Next Friend FOO)

Respondent

Ruling

1. This is a ruling in the court is the Notice of Motion Application dated 13th February, 2023 which seeks the following orders:a.Spent.b.After the hearing and determination of this application interparte stay of execution of the judgment/decree delivered on 9th January 2023 in Kiambu Chief Magistrate’s Court Civil Suit No. 152 of 2019 be granted.c.The Applicant be granted leave to Appeal albeit out of time, the judgment delivered on 9th January 2023 by Hon. M. Kinyanjui- Principal Magistrate.d.In the alternative, the Memorandum of Appeal annexed to this application dated 13th February, 2023 be deemed to be duly filed.e.The costs of this application be provided for.

2. The Application is based on Supporting Affidavit of RWN sworn on 13th February, 2023 which are a reiteration of the grounds as set out on its face as follows:a.On 9th January 2023, the Judgment in Kiambu CMCCNo. 152 of 2019 was delivered by Hon Kinyanjui Principal Magistrate virtually in the presence of both parties.b.The said judgment was against the Applicant herein who was granted thirty (30) days stay of execution.c.Being aggrieved by the judgment, the applicant made an application on 12th Januar,y 2023 for a certified copy of the judgment which was eventually availed on 10th February, 2023. d.By the time the judgment was received,both the stay of execution and the statutory timelines for filing an Appeal had lapsed.e.The Applicant intends to prefer an Appeal from the judgment in Kiambu CMCC No. 152 of 2019 and thus execution will render the said intended appeal nugatory, if successful.f.It is in the interest of justice that leave is granted to the Applicant to file an Appeal out of time and stay of execution be granted, pending hearing and determination of the said appeal.g.The Applicant’s insurer is willing to offer security in the form of a bank guarantee and will abide with any orders issued by the court as conditions for stay of execution.

3. The Application is opposed through Grounds of Opposition dated 5th May, 2023 in which the respondent has stated:a.That the Appeal was filed out of time and stay of execution has since lapsed. The Appellant has not given any sufficient reason for the same therefore we pray should be dismissed.b.That in order to secure the decretal sum together with costs amounting to Kshs 1,063,890/= the Appellants/Applicant to deposit the whole decretal amount in court or in the alternative the same to be deposited in joint interest earning account.c.That the Appellant/Applicant do furnish security and if the court is inclined to grant the prayers then the Appellants/Applicants should pay the balance of the decretal sum together with costs to the Plaintiff advocates bank account.d.That the letter of establishment of bank guarantee from Family Bank subject to be reviewed after 12 months from the date thereof is not proof of deposit of the decretal sum as per the court order and the same should be not be treated as proof of any security of the decretal sum subject to this suit.

4. On 2nd July, 2023, the counsel for the parties opted to rely on their respective pleadings and filed in copies of the application.

5. I have considered the parties respective pleadings and the law upon which the prayers sought is premised. I find the issues for determination being:a.Whether the applicant can be granted leave to appeal out of time, and if so,b.Whether a stay of execution can be granted in the circumstances of this case.

6. With regard to whether the Applicant can be granted leave to appeal out of time, it is trite law and based on the provisions of Section 79 (G) of the Civil Procedure Act, the appeal should be lodged within thirty (30) days from the date of the decree or order to be appealed against, which leave can be extended upon demonstration of good and sufficient reason(s). The Section states:-“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.”[

7. For a court to consider whether or not to expand the timeline within which to extend the timeline for lodging an appeal several factors must be satisfied. In the case ofEdith Gichungu v Stephen Njagi Thoithi [2014]eKLR, the Court of Appeal set out the factors to be considered extending the timelines within which to lodge an appeal.

8. In the instant case, I have perused the record and established that the trial court delivered its judgment on 4th July, 2023 and applicant granted thirty (30) days stay of execution. This application and draft Memorandum of Appeal were filed on 13th February, 2023. It will be noted that the 30 days stay of execution lodged on 10th February, 2023 and the application herein filed seven (7) days later. This court finds this period as not inordinate delay. There is even letter dated 10th January, 2023 to show this the applicant had written to court to request for a certified copy of proceedings and judgment. For those reasons, even through the respondent has opposed the extension of the timelines within which to lodge an appeal, the court finds that the applicant has demonstrated sufficient reason to warrant this court rant her leave to file an appeal out of time.

9. On the issue of whether the court can grant a stay of execution pending the hearing and determination of the appeal. The court will place reliance on the provisions of Order 42 Rule 6 of the Civil Procedure Rules which provides:Order 42 rule 6(2) of the Civil Procedure Ruleswhich provides:“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; and(b)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”

10. It is trite law that for a court to grant stay of execution three conditions must be met and they are that:a.The application has been made without unreasonable delay.b.The Applicant will suffer Substantial lossc.The Applicant has offered security for due performance of the decree.

11. On the first condition, it is without doubt that the judgment before the trial court was delivered on 9th January, 2023 and the present application was filed on 17th February, 2023. The Applicant holds that the reason for the delay was that it was awaiting a certified copy of the judgment to be availed and which was later availed on 10th February, 2023. The Applicant holds that it had issued a letter dated 12th January, 2023 requesting for a certified copy of the judgment although there is no proof that the same was received by the court.

12. On the second condition of the likelihood of the applicant suffering substantial loss, of say is granted the applicant has only stated that she is likely to suffer substantial loss but has not substantiated the position and yet it is not enough for a party to to simply state so. The court in the case of Kenya Shell Limited v Benjamin Karuga Kibiru & Another[1986] eKLR held,“Substantial loss in its various forms is the corner stone of both jurisdictions for granting a stay. That is what has to be prevented. Therefore, without this evidence it is difficult to see why the respondents should be kept out of their money”

13. This court agrees with the said decision in the case of Kenya Shell supra that without the evidence of the substantial loss to be suffered, it is difficult to grant the stay orders as there would be no reason demonstrated why the Respondent should be kept away from its judgment.

14. Lastly is the issue of providing security for the due performance, the Applicant contends that its insurer is willing to offer a bank guarantee as such security. The Respondent inn the grounds on the opposition, the Respondent has rebutted that the bank guarantee offered as security is subject to review after 12 months and therefore it is not proof of the deposit of the decretal sum or security. This issue of security was discussed in the case of Gianfranco Manenthi & another v. Africa Merchant Assurance Company Ltd [2019] eKLR, where it was held:“… the applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails...”

15. Having found that the applicant has not sufficiently fulfilled any of the three conditions for the stay of execution orders to issue, it is pertinent to consider the purpose for which a stay of execution pending appeal issues, which was discussed in the case of RWN v EKN[2019]eKLR as follows:-“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 undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.

16. Therefore, in the interest of justice, the Notice of Motion application dated 13th February, 2023 is allowed in the following terms:-a.The Applicant be and is hereby granted leave to appeal out of time and the Memorandum of Appeal dated 13th February, 2023 be deemed as duly filed and served upon the respondent.b.That there by a stay of execution on condition that the Applicant deposits the entire decretal sum together with costs within thirty (30) days from the date of this ruling.c.The Deputy Registrar to call for and avail the original record of proceedings in Children Case No.152 of 2019 at Kiambu.d.The Appellant to compile file and serve a Record of Appeal within forty five (45) days from the date hereof.e.Mention on 24th January, 2024 for parties to confirm compliance of directions and take further directions on hearing of the appeal.f.Failure to comply with Order No.(b) the application still stand dismissed and the respondent be at liberty to proceed with execution.It is so ordered.

RULING DELIVERED, DATED AND SIGNED AT KIAMBU THIS 9TH DAY OF NOVEMBER , 2023. D. O. CHEPKWONYJUDGEIn the presence of:M/S Nderitu holding brief for Mr. Outa counsel for Appellant/ApplicantCourt Assistant - Martin