[2023] KEHC 23943 (KLR)

Nyaga v Wabai (Miscellaneous Application E029 of 2023) [2023] KEHC 23943 (KLR) (17 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23943 (KLR)

Republic of Kenya

In the High Court at Embu

Miscellaneous Application E029 of 2023

LM Njuguna, J

October 17, 2023

Between

Edwin Murathi Nyaga

Applicant

and

Jane Njeri Wabai

Respondent

Ruling

1. The applicant has filed a notice of motion dated 27th June 2023, supported by the grounds set out on the face of the application as well as the facts deposed to, in the supporting affidavit. The orders sought are as follows:a.Spent;b.That the honourable court be pleased to grant stay of execution of the ex parte judgment/decree dated 02nd December 2020 pending the hearing and determination of this application;c.That the honourable court be pleased to grant the applicant herein leave to appeal against the ruling of the trial court in Embu CMCC No. 116 of 2019 delivered on 18th January 2023;d.That this honourable court be pleased to grant stay of execution of the judgment dated 02nd December 2020 pending the hearing and determination of the intended appeal; ande.That the costs of this application be provided for.

2. It is the applicant’s case that he filed the application dated 05th July 2022 seeking to set aside the ex parte judgment dated 02nd December 2020 in Embu CMCC No. 116 of 2019. That the court had directed that the ruling for the application would be delivered on notice, but the court went ahead and delivered the ruling on 18/01/2023 in the absence of the parties and/ or their counsel. That in the said ruling, the court set aside its judgment but also ordered that the judgment sum be deposited in an interest earning account, which orders are contradictory. That the applicant only learned of the ruling in June 2023 and therefore filed the application herein. He added that his intended appeal has high chances of success.

3. The respondent filed her replying affidavit in which she averred that the applicant filed an application dated 05th July 2022 seeking that the trial court, inter alia, sets aside its ex parte judgment and decree and allows the applicant to defend the suit. That on 13th July 2022, the court granted the orders sought on condition that the applicant deposits the decretal sum in court. That the applicant filed another application dated 10th August 2022 seeking that the court review, vary or set aside its ruling dated 13th July 2022. The court gave its ruling on 18th January 2023 dismissing the application. She stated that when the suit was instituted, the applicant failed to defend the suit despite the fact that he and his insurer were both duly served.

4. That the respondent moved the court for interlocutory judgment and the same was entered and a decree issued. She avers that her advocates wrote to the applicant’s advocates and insurers twice informing them of their intention to execute the decree vide letters dated 10th March 2022 and 14th June 2022. That the applicant cannot claim that he did not know of the suit. It was her case that the application herein is an attempt to stop the respondent from enjoying the fruits of her judgment.

5. In this appeal, the court directed that the parties file their written submissions. Only the respondent complied.

6. The respondent relied on the provisions of Order 42 Rule 6 of the Civil Procedure Rules and the cases of James Wangalwa &anotherv Agnes Naliaka Cheseto (2012) eKLR and Gianfranco Manenthi &anotherv Africa Merchant Assurance Company Ltd (2019) eKLR where the conditions for granting stay of execution were discussed. That on the prayer for leave to appeal out of time, the respondent relied on the provisions of Section 79G of the Civil Procedure Act and the unreported decision of the court of appeal in the case of Leo Sila Mutiso v Rose Hellen Wangari Mwangi- Nairobi Civil Appeal No. 255 of 2017 where the court found that while the award of leave to appeal out of time is discretionary, the court should consider the length of the delay, the reason for delay and the chances of success of the appeal. She stated that the applicant was duly served with the relevant court processes on time and he knew that a ruling for the application had been scheduled but he still did not attend court way. That even though the court did not sit, it is immaterial that the ruling was delivered without notice.

7. The issues for determination are whether the application meets the threshold for issuance of orders for stay of execution pending appeal and leave to appeal out of time.

8. In considering whether or not to grant stay of execution, the court is expected to look at the circumstances and test them against the provisions of the law before applying its discretion on the matter. On this prayer, I am guided by Order 42 Rule 6(2) of the Civil Procedure Act which provides:(2)No order for stay of execution shall be made under subrule (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.

9. As to whether there was delay, I note that the impugned ruling (which relates to the ex parte judgment delivered on 02nd December 2020) was delivered on 18th January 2023 but this application seeking stay was filed on 05th July 2023, close to 7 months down the line. This is an oddly long time for the applicant to wait before filing the application herein. The second question is, what caused the delay? The applicant stated that he did not know that the ruling had been delivered until June 2023 when the respondent reached out to him in an attempt to execute the decree. In my view, this is not sufficient reason for the delay.

10. The respondent stated that the ruling had been scheduled to be delivered on 23rd November 2022 but on the material day the court did not sit. On 18th January when the ruling was delivered, the Magistrate noted that the same was read in open court in the absence of the parties. In the said ruling, the court noted that the applicant herein did not dispute that they were served with the documents but rather, the insured stated that they misplaced the served documents. I do note that they chose to do nothing about it, yet there were several options on how they could get fresh copies served to them. I think that the applicant neglected the whole litigation process after filing the application and was not vigilant enough to follow up on the ruling. The third consideration is that the applicant has to provide security for due performance of the judgment. On this, the applicant has indicated that he is willing to provide security for due performance of the decree.

11. On the issue of whether the court should grant the applicant leave to appeal out of time, the applicant must satisfy the court that the application for leave had been brought timeously and without delay, but if there is delay then it is for good reason and that if the court does not grant the order sought then the applicant will suffer prejudice because the appeal makes an arguable case. This prayer is to be granted on a discretionary basis and may be denied where the court thinks that there is no good reason why the appeal was not filed within time.

12. Section 79G of the Civil Procedure Act provides:“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 a good and sufficient cause for not filing the appeal in time.”

13. Similarly, in the case of Edith Gichungu Koine v Stephen Njagi Thoithi (2014) eKLR the court held thus:“Nevertheless, it ought to be guided by consideration of factors stated in many previous decision of this court including, but no limited to, the period of delay, the reasons for the delay, the degree of prejudice to Respondent if the application is granted, and whether the matter raises issues of public importance, amongst others.”

14. I have perused the draft memorandum of appeal and in my view, the grounds of appeal present an arguable case on appeal. Article 48 of theConstitution of Kenya 2010 guarantees every person right of access to justice. Further, Article 50(1) of the Constitution provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. I am therefore inclined to grant the applicant leave to appeal out of time only on this basis.

15. Further, and in consideration of both prayers for stay of execution and leave to appeal out of time, I am reminded of the role of the court in administration of justice as stated in the case of Kamuti v Kariuki (Miscellaneous Civil Cause E001 of 2023) (2023) observed that:“The ultimate goal and purpose of the justice system is to hear and determine disputes fully. It follows that no person who has approached the court seeking an opportunity to ventilate their grievances fully should be locked out unless for a good reason.”

16. In the end, having considered the arguments of both parties, and relevant laws, I find that the application is meritorious and is hereby allowed and the following orders to issue:a.The applicant is hereby granted leave to file the appeal out of time and the same to be filed within 14 days from the date of this ruling;b.Execution of the judgment and subsequent orders in Embu CMCC No. 116 of 2019 delivered on 18th January 2023 is hereby stayed pending hearing and determination of the appeal;c.The appeal to be prosecuted within 120 days after filing of the same; andd.Each party to bear their own costs.

17. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 17TH DAY OF OCTOBER, 2023. L. NJUGUNAJUDGE..............................for the Applicant..............................for the Respondent