[2022] KEHC 16975 (KLR)

Ngunjiri t/a Tango Auctioneers & General Merchants v Kitu (Civil Miscellaneous Application 203 of 2019) [2022] KEHC 16975 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16975 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Miscellaneous Application 203 of 2019

GWN Macharia, J

December 15, 2022

Between

John M Ngunjiri t/a Tango Auctioneers & General Merchants

Applicant

and

Gideon Mwanja Kitu

Respondent

Ruling

1. The application for consideration is the Applicant’s Notice of motion dated the 25th day of September, 2019 brought under section 1A, 1B & 79G of the Civil Procedure Act, order 42 rule 1&2, order 50 rules 1&3 of the Civil Procedure Rules and article 159 of the Constitution of Kenya , 2010 seeking that:a.Spent.b.The Court be pleased to order stay of execution of the judgment and decree in Naivasha CMCC No. 406 of 2011 pending the hearing and determination of the application inter partes.c.The Court be pleased to order stay the execution of the judgment and decree in Naivasha CMCC No 406 of 2011 pending the hearing and determination of the intended appeal.d.The honourable court be pleased to grant the Applicant herein leave to file an Appeal against the decision of Hon EK Kimilu dated the 5th day of March, 2019 as per the attached draft Memorandum of Appeal out of time and/or that time for filing and serving the same be extended.e.The costs of the Application be provided for.

2. The application is based on the grounds on the face of it and supported by the affidavits of Kamau P. Njuguna, advocate for the applicant/intended appellant.

3. The respondent filed a replying affidavit sworn on June 9, 2021 in which it vehemently opposed the application.

4. Parties took directions to have the application canvassed by way of written submissions. However, as at the time of writing the ruling, no submissions had been placed on record. Be that as it may, I hold the view that submissions do not form evidence and are merely tools of persuasion by parties for the Court to make a finding in favour of their case. The failure to file submissions is not a deterrence to the court making a ruling on the issues raised by the parties in their respective pleadings.

5. In so holding, I take the position by the Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi &another [2014] eKLR thus:“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.”

The Applicant’s/Intended Appellant’s Case 6. The applicant’s case is that he was aggrieved by the decision of the trial court dismissing an application in which he sought that the judgment in the trial court be set aside and he be allowed to prosecute his case. He avers that, on the date of the hearing of the suit before the trial court, the applicant’s counsel on record requested another counsel to hold his brief and pray for an adjournment. The court declined to issue the said adjournment and the hearing proceeded and later a judgment was entered against the applicant.

7. That the applicant only became aware that the judgment had been entered and delivered on the 16th day of October, 2018 after which he instructed the present counsel on record to file an application seeking stay of execution and setting aside of the said judgment. The application was dated November 29, 2018.

8. The trial court delivered a ruling on the 5th day of March, 2019 in which it dismissed the said application. Counsel holding brief for the deponent’s firm failed to seek orders of stay of execution.

9. Subsequently, on the 20th day of March, 2019, the Applicant’s counsel on record requested for a copy of the said ruling with the intention of applying for stay orders. The Applicant was out of the country for some time and the ruling was supplied after the expiry of the days reserved for appeal.

10. The applicant jetted back and the counsel on record duly advised him upon which he gave instructions to make the application for extension of time to file an appeal against the said ruling.

11. It is the applicant’s further averment that he has a good and arguable appeal which will be rendered nugatory in the event that stay is not granted.

12. It is additionally averred by the respondent that the application is brought in good faith.

13. The applicant swore a further affidavit in support of the application on the 17th day of January, 2020 in which he further stated that the application would be rendered nugatory if not urgently heard and determined as the respondent had already commenced execution process and that he and his co-defendant had been served with warrants of attachment and sale of property. The same were annexed to the affidavit.

Respondent’s Case 14. The respondent in opposing the application filed a replying affidavit sworn on June 9, 2020.

15. It is the respondent’s case that the applicant did not have to wait for a copy of the ruling so as to file his memorandum of appeal against the decision of the trial court dismissing its application seeking to stay execution and set aside the judgment.

16. It is averred by the respondent that in the letter to court, the Applicant only sought typed certified copy of the ruling but not the proceedings and is not therefore, entitled to the extension of time to appeal. That, in any case, the Applicant had failed to demonstrate when they were supplied with the said ruling as requested and what caused the delay in filing the present application.

17. It was further the Respondent’s case that it is not demonstrated that the Applicant lost touch with his counsel on record, neither has he proved that he was out of the country for a spell and as such, could not properly instruct counsel from time to time.

18. The Respondent intimated that the Memorandum of Appeal does not raise any arguable points and the Applicant having not indicated his willingness to provide security for due performance of the decree is undeserving of the orders of stay of execution. That the application was filed with undue delay on the 25th September, 2019 and only served upon the Respondent’s counsel on the 24th day of February, 2020.

19. The Respondent urged the Court to dismiss the application with costs.

Analysis and Determination 20. I have carefully considered Applicant’s application, the affidavit in support thereof, the Replying Affidavit in response to the application and the Further Affidavit on record. I find that the issue for determination is whether the Applicant has met the threshold for grant of extension of time to file an appeal.

21. 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 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.”

22. The principles in considering whether to grant leave to file an appeal out of time were well set out in the case ofFirst American Bank of Kenya Ltd v Gulab P Shah & 2others Nairobi (Milimani) HCCC No. 2255 of 2000 [2002] 1 EA 65 as:“(i)the explanation if any for the delay;(ii)the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice;(iii)Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant.”

23. The Court of Appeal in Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR, also set out the principles undergirding an application for leave to file an appeal out of time as follows:“Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst others...”

24. The Supreme Court in addressing the same issue in Civil Application No 3 of 2016 - County Executive of Kisumu v County Government of Kisumu & 7others held as follows:“… 23) It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the court. Further, this court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salat case to which all the parties herein have relied upon. The court delineated the following as:-“the underlying principles that a court should consider in exercise of 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 for 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)Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court.”

25. The applicant has casually given explanation as to what occasioned the was delay. He cited the delay to be attributed to obtaining the certified copy of the ruling. Other than giving the date when the same was applied for, the applicant has failed to indicate when he was supplied with a copy of the said ruling by the court. It is therefore not established when the same was issued to the Applicant and whether upon obtaining the same, he proceeded with speed to bring the present application.

26. The Applicant filed the present application and was given audience of the Court on the 26th day of September, 2019 on an urgent basis. However, the Court found that it had failed to establish the urgency of the matter and directed that it serves the same upon the Respondent and fix a hearing date in the normal course. The Applicant failed to comply with the said court orders and only moved court on the 25th day of January, 2020 with similar prayers. The Court then directed that the Applicant would be allowed a hearing date on priority basis on condition that he places on record proof of service.

27. In the foregoing circumstances, I find repeated indolence on the part of the Applicant both prior to filing the instant application as well as after the same had been filed. The Applicant seems not to have been keen and/or agile to utilise the opportunity to be heard both before the Trial Court and this Court.

28. Clearly, the Applicant has failed to satisfactorily explain the delay of approximately six months in filing his appeal as well as the instant application.

29. On whether the annexed memorandum of appeal raises a triable issue, the Court is of the opinion that the orders sought in the application dismissed by the trial court were discretionary in nature. The Trial Court proceeded to explain the reasons as to why it declined to set aside its judgment and stay execution of the decree. It held:“In Shah v Mbogo (1967) EA 166, the Court held that this discretion to set aside an ex parte judgement is intended to be exercised to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but it is not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice.In the case at hand, the Applicant confirmed he had appointed an advocate to represent him. The advocate sent counsel to hold brief on the 11th day of September, 2018 when the matter came up for hearing. The Applicant was not in court. The Application for adjournment was denied taking into consideration the court directed that the matter be fixed for hearing on priority basis considering the same has been pending in court for over 8 years.Indeed, the Court has discretion to set aside or vary an exparte judgment but the same should not be exercised to obstruct or delay the cause of justice. As submitted by the Plaintiff/Respondent, the Applicant has not even demonstrated at one point he lost contact with his advocate. It is clear the Applicant’s action is to subject the Plaintiff into more suffering. The Applicant has not been vigilant into having the matter heard and determined expeditiously.The Applicant has also sought orders of stay of execution of the ex parte judgment and also same be set aside. It is not clear after stay and setting aside the judgment what nextThe Applicant has not sought leave to defend his claim. Indeed the Application has been brought without inordinate delay. The Applicant cannot be granted what they have not sought. The Court cannot stay and/or set aside its judgment without next action. It is the finding of the court that the application is incompetent and lacks merit.The Application is brought to delay the Plaintiff enjoyment of the fruits of his jugment. Further, the court cannot admit the applicant’s evidence through averments in a supporting affidavit.The Applicant’s advocate is recognised agent in law as per order 3 rule 1. Whether the Applicant has a good defence, this is not a ground to stay ex parte judgment. The Applicant ought to have ventilated his defence through sworn evidence in chief. The Applicant cannot be heard, he was condemned unheard yet counsel appeared on the hearing date to hold brief for the advocate on record.”

30. I have perused the Memorandum of Appeal and it is based on the grounds that:1. The honourable trial magistrate erred in law and in fact in dismissing the application for stay of ex parte judgment.2. The honourable trial magistrate erred in law and in fact in finding that the applicant did not seek leave to defend the claim thus could not be granted what they had sought.3. The honourable trial magistrate erred in law and in fact by finding that the application was simply aimed at delaying the plaintiff’s enjoyment of the fruits of his judgment.4. The honourable trial magistrate erred in law and fact in finding that the fact that the applicant had a good defence was not a ground to stay and ex parte judgment.

31. I am of the considered view that the applicant intends to appeal against an order made pursuant to the discretionary powers of the court as set out in the draft memorandum of appeal. I have considered the reasoning of the Trial Court leading to its determination and find no fault in the way the discretionary powers were applied. The same were not exercised injudiciously to warrant the setting aside by this Court.

32. In finding that the Memorandum of Appeal as annexed does not present an arguable issue, I am mindful of the fact that an arguable appeal does not have to be one which will necessarily succeed as was the holding of the Court of Appeal in the case of Kenya Railways Corporation v Erdemann Property Limited [2012] eKLR.

33. On whether the Respondent will be prejudiced, the Court finds that the mere fact that the Respondent will be dragged back to litigation even after satisfying the judgment would be prejudicial. However, the same can be compensated by costs. In Chemwolo & another v Kubende [1986] KLR 492; [1986-1989] EA 74, it was held that:“Unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs since the Courts exist for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.”

34. Accordingly, the prejudice that the Respondent is likely to suffer can be compensated by way of costs. I however note that the Applicant having not been denied a chance to ventilate his case and no indication having been made by counsel holding brief on the date of the hearing that they would be seeking to, in the very least, cross examine the Respondent’s witness(es) who testified when the matter came up for hearing, it would suffice to say that the Applicant had minimal interest in taking part in the proceedings. The Applicant’s counsel in court neither sought to set aside the proceedings of the date when the same came up for hearing nor did he seek to have the witnesses recalled at any point. The Applicant only became awake when judgment was issued against him.

35. In view of the foregoing, I find that though the Respondent can be compensated by costs for the prejudice it will suffer, the Applicant’s indolence will be substantially detrimental to the Respondent who ought to enjoy the fruits of his judgment.

36. I therefore find that the Applicant has not met the threshold warranting this Court to exercise its discretion and allow him to file an appeal out of time. Consequently, the prayer for stay of execution also fails.

Disposition 37. In the premises, I find that the application lacks merit and is dismissed with costs to the respondent.

38. It is so ordered.

Dated and Delivered at Naivasha this 15th day of December, 2022. G.W. NGENYE-MACHARIAJUDGEIn the presence of:Mr. Njuguna for the Applicant.Ms. Rotich for the Respondent- absent but duly notified online.