[2022] KEHC 14998 (KLR)

Ngari & another v Ngari (Miscellaneous Succession Application E011 of 2021) [2022] KEHC 14998 (KLR) (10 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14998 (KLR)

Republic of Kenya

In the High Court at Nyeri

Miscellaneous Succession Application E011 of 2021

FN Muchemi, J

November 10, 2022

Between

Lucy Wangui Ngari

1st Appellant

Ephraim Kiumu Muya

2nd Appellant

and

John Muya Ngari

Respondent

Ruling

Brief facts 1. The application dated September 30, 2021 seeks orders for leave to file an appeal out of time against ruling in Karatina Succession Cause No. 235 of 2017 delivered on September 2, 2021. The applicants further seek for orders for stay of execution of the said ruling pending filing of the intended appeal.

2. In opposition to the application, the respondent filed Grounds of Opposition dated May 19, 2022.

Applicants’ Case 3. The applicant states that time within which the intended appeal was to be filed has expired and that the failure to file the appeal within the stipulated time was not intentional but was occasioned by the delay to receive instructions from the 2nd applicant who is out of the country.

4. The 1st applicant further states that he is apprehensive that parties herein may execute the transmission documents rendering the instant application nugatory. Further, that the intended appeal is arguable and has a high chance of success.

The Respondent’s Case 5. The respondent opposes the application on the premise that it is misconceived, defective, vexatious and a total abuse of the court process and further that the application is a delaying tactic intended to maintain the status quo which is prejudicial to him as he cannot enjoy the portion of the estate distributed to him yet the applicants are in exclusive use of the entire estate. That notwithstanding, the respondent states that the intended appeal has no chances of success.

6. Parties hereby disposed of the application by way of written submissions.

The Applicants’ Submissions 7. The applicants rely on Article 159 (2)(d) of the Constitution and the cases of Kenya Ports Authority v Kenya Power & Lighting Co. Limited [2012] eKLR and James Muriithi Ngotho & 4 Others v Judicial Service Commission [2012] eKLR and argue that the court ought to allow the instant application and give parties a chance to ventilate their case. The applicants further submit that the court ought to look at the substance and the issues raised which were misrepresented at the trial court.

8. The applicants state that they stand to suffer prejudice as the respondent has already moved to the suit property which is making a mockery of the proceedings in the succession cause in the trial court. The applicants urge the instant court not to allow such an injustice to persist and pray that the court allow their appeal to enable it determine the fraudulent transfer of the property Title No. Laikipia/Tigithi/Matanya/Block 5/1465, which was carried out from January 5, 1991 to September 22, 2014 yet the deceased died on March 10, 1979.

The Respondent’s Submissions 9. The respondent submits that the ruling of the trial court was delivered in the presence of the applicants’ counsel and that it did not require the applicant to be in the country to give instructions as he would have communicated with his counsel through phone or email. The respondent further argues that it has not been averred whether the 2nd applicant has come back to Kenya to give instructions physically. The fact is that the applicant is still outside the country. Moreover, the 1st applicant has not demonstrated any difficulty in communication between the time of the ruling and the statutory time for filing the appeal. The respondent contends that it is his application seeking to have the transmission documents signed by the Deputy Registrar that has prompted the applicants to file the instant application. As such, the respondent argues that the instant application is a delay tactic meant to delay the distribution of the estate.

10. The respondent submits that the instant application has no merits and the appeal has no chances of success as the summons for revocation was struck out on points of law on the basis that the applicants were the petitioners in the lower court and thus could not allege fraud and misrepresentation in a petition they had filed. Further, the respondent argues that the applicants delayed filing an appeal against the confirmed grant and later tried to sneak in an appeal through filing a summons for revocation of grant.

11. The respondent further contends that Title No. Laikipia/Tigithi/Matanya Blocks/1465 does not form part of the estate. As alleged by the applicants, the land has already been transferred and registered in the name of someone else which was done 3 years before the petition in the trial court was filed. As such, the respondent argues that the applicants cannot be allowed to adduce new evidence as a basis for seeking of extension of time to appeal against their dismissed summons for revocation of grant. Moreover, the respondent submits that in the event the applicants have an issue with Title No. Laikipia/Tigithi/Matanya Block 5/1465, the succession court has no jurisdiction over that parcel of land and the applicants only have recourse in the Environment and Land Court.

12. This court is required to determine two issues as follows:-a)Whether the court should exercise its discretion to grant the applicants leave to file their appeal out of time;b)Whether the applicants have met the prerequisite for grant of stay of execution pending appeal;

The Law Whether the court should exercise its discretion to grant the applicants leave to file their appeal out of time; 13. Section 79G of the Civil Procedure Act 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 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.

14. It is clear from the wording of section 79G of the Civil Procedure Act, that before the court considers extension of time, the applicants must satisfy the court that that they have good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited v William Muthama Kitonyi [2018]eKLR an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.

15. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vsIEBCand 7others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-“The underlying principles a court should consider in exercise of such discretion should include:-a)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;b)A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;c)Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;d)Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;e)Whether there will be any prejudice suffered by the respondent if the extension is granted;f)Whether the application has been brought without undue delay.

16. Similarly in the case of Paul Musili Wambua v Attorney General & 2others [2015]eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:-“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”

17. The 1st applicant has stated that the 2nd applicant is out of the country and thus her reason for delay in filing the appeal. She has further submitted that the delay occasioned is a technicality and urges the court to do substantive justice without undue regard to any technicalities. The ruling in this cause was delivered on September 2, 2021 and this application filed on October 5, 2021. The applicants did not file their Memorandum of Appeal but annexed it to their application which was received by the court on October 5, 2021. Therefore the applicants filed their application 3 days out of the statutory time for filing their appeal. It is therefore my considered view that a delay of 3 days is not inordinate and thus allow the extension of time to file the memorandum of appeal.

Whether the applicants have satisfied the conditions set out in Order 42 Rule 6 of the Civil Procedure Rules for stay of execution pending appeal. 18. It is trite law that an appeal does not operate as an automatic stay of execution. The conditions which a party must establish in order for the court to order stay of execution are provided for under Order 42 Rule 6(2) Civil Procedure Rules. Order 42 Rule 6 of the Civil Procedure Rules stipulates:-(1)“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 orders set aside.2. 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 1st 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.

19. Thus under Order 42 Rule 6(2) of the Civil Procedure Rules, an applicant should satisfy the court that:1. Substantial loss may result to him/her unless the order is made;2. That the application has been made without unreasonable delay; and3. The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him.

20. These principles were enunciated in Butt v Rent Restriction Tribunal [1979] the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that:-1. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.2. Secondly, 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 the appeal court reverse the judge’s discretion.3. Thirdly, 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. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. 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 of costs as ordered will cause the order for stay of execution to lapse.

Substantial loss 21. Under this head, an applicant must clearly state what loss, if any, they stand to suffer. This principle was enunciated in the case of Shell Ltd v Kibiru and Another [1986]KLR410 Platt JA set out two different circumstances when substantial loss could arise as follows:-“The appeal is to be taken against a judgment in which it was held that the present respondents were entitled to claim damages….It is a money decree. An intended appeal does not operate as a stay. The application for stay made in the high Court failed because the gist of the conditions set out in Order XLI Rule 4 (now Order 42 Rule 6(2)) of the Civil Procedure Rules was not met. There was no evidence of substantial loss to the applicant, either in this matter of paying the damages awarded which would cause difficulty to the applicant itself, or because it would lose its money, if payment was made, since the Respondents would be unable to repay the decretal sum plus costs in two courts….”

22. The learned judge continued to observe that:-“It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting 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.

23. Earlier on, Hancox JA in his ruling observed that:-“It is true to say that in consideration [sic] an application for stay, the court doing so must address its collective mind to the question of whether to refuse it would…render the appeal nugatory.This is shown by the following passage of Cotton LJ in Wilson v Church (No.2) [1879] 12 ChD 454 at page 458 where he said:-“I wish to state my opinion that when a party is appealing, exercising his undoubtedly right of appeal, this court ought to see the appeal, if successful, is not rendered nugatory. “As I said, I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given. Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause.”

24. It is not in dispute that L.R Laikipia/Tigithi/Matanya/Block 5/1465 as per the grant has been allocated to the 1st applicant to hold in trust for the children. That notwithstanding there seems to be an issue on the ownership of the said land that may require to be dealt with. The said parcel of land was listed as part of the estate of the deceased but the official search indicates that the said parcel of land belongs to one Hezron Muriuki Murebu as of December 18, 2007. Furthermore, the applicants did not attend the hearing of the protest but raised the same issue after the grant was confirmed in 2019. Notably, the succession cause was filed in 2013. Thus the said parcel of land was already registered in the name of one Hezron Muriuki Murebu. At this point, since the parties are contesting the ownership of the land in question, this instant court lacks the jurisdiction to determine ownership of the land and the parties only have recourse in the environment and land court. As such, it would be in vain for this court to make any orders for stay of execution for the ownership of the land ought to be determined first. It is the Environment and Land court that is possessed of the requisite jurisdiction to deal with the matter.

25. Having failed to demonstrate the loss to be suffered by the applicant if the grant is executed, I find that the prayer for stay of execution must fail.

26. In regard to extension of time to file the intended appeal, this court is inclined to allow the prayer.

27. I find the application partly successful and allow it in the following terms:-a)That the applicants have ten (10) days to file the intended appeal failure to which the orders herein shall stand vacated.b)That the prayer for stay pending appeal is hereby dismissed.c)That costs shall abide in the appeal.

28. It is hereby so ordered.

DATED AND SIGNED AT NYERI THIS 10TH DAY OF NOVEMBER, 2022. F. MUCHEMIJUDGERULING DELIVERED THROUGH VIDEO LINK THIS 10TH DAY OF NOVEMBER, 2022