[2023] KEHC 25125 (KLR)

Nzonga v Nzonga (Miscellaneous Civil Application E099 of 2022) [2023] KEHC 25125 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25125 (KLR)

Republic of Kenya

In the High Court at Makueni

Miscellaneous Civil Application E099 of 2022

TM Matheka, J

November 10, 2023

Between

Sammy Mutuku Nzonga

Applicant

and

Benson Kioko Nzonga

Respondent

Ruling

1. From the record before me the applicant and the respondent are brothers. The respondent filed Makindu MCCC No 97 of 2020 seeking a sum of Ksh 70,000 plus costs and interest from the applicant. On the June 29, 2021 the learned trial Magistrate found in favour of the respondent.

2. Aggrieved, the applicant filed the application dated September 26, 2022 on 26th October under certificate of urgency under sections 1A, 3A, 43(1), 75 & 79G of the Civil Procedure Act, order 51 rules 1, 2 & 6 of the Civil Procedure Rules 2010 seeking orders;a.Spent.b.Spentc.That pending the hearing and determination of this appeal, there be a stay of execution of the judgment and decree issued by Makindu Senior Resident Magistrate’s court Civil Case No. 97 of 2020 between the parties herein.d.That the applicant be granted leave to appeal out of time against the judgment delivered on 29/06/2022. e.That the applicant do have costs of this application.

3. The grounds for the application are on its face and Affidavits sworn on by the applicant on the 05th September 022 and January 10, 2023. He depones that he will suffer substantial loss, the application has been made without delay and he is willing to provide security for due performance of the decree, that the appeal raises substantial issues requiring the attention of this court. He adds that the respondent is his brother and based on their interactions, he is apprehensive that the brother will not be in a position to refund the decretal sum. He has exhibited a letter requesting for the trial court judgment as SMN 1 and a draft decree as SMN 2.

4. The application is opposed through the respondent’s undated replying affidavit filed on December 16, 2022 where he depones that the application is frivolous, vexatious, abuse of court process, afterthought and intended to deny him the enjoyment of the fruits of his lawfully obtained judgment. That the only reason why the applicant intends to appeal is because the execution process has been started. That there is no basis for grant of stay of execution pending appeal as no appeal has been filed yet.

5. Further, he depones that the applicant, being his brother, is well conversant with his economic status and is aware of his ability to refund the money if the appeal succeeds. That the reasons given by the applicant are mere excuses as the request for judgment and proceedings was done way after the lapse of 30 days within which an appeal ought to be brought. That the reasons given are not sufficient as the applicant’s advocate was involved in the proceedings all along and was present when the judgment was delivered. He depones that the application should have been brought earlier in August instead of waiting for October after they had applied for the decree.

6. In rejoinder, the applicant depones that the intended appeal raises triable issues, is not an afterthought and is not meant to delay enjoyment by the respondent of the fruits of his judgment. That the decree was obtained on November 15, 2022 after the application had been instituted. A copy of the decree is exhibited as SMN 3. He reiterates that the applicant is a man of straw and there shall be extreme difficulties in recovering the decretal sum. That the delay is not inordinate and should not be construed to mean that he relinquished his right to appeal. That there is no prejudice to be suffered and the appeal has high chances of success.

7. The application was canvassed through written submissions.

The Applicant’s Submissions 8. He submits that the relative period of 3 months’ delay is not inordinate and the same was caused by the process of obtaining the judgment. That the judgment was delivered on the 29th June, he sought for the copy of the Judgment and the proceedings on the 2nd of August 2022 and filed the application on October 26, 2022 and that at the time of submitting, he had not obtained it despite following up. He has cited inter alia Gerald M’Limbine v Joseph Kangangi (2008) eKLR where the court stated ;“My understanding of the proviso to section 79G is that an applicant seeking ‘an appeal to be admitted out of time’ must in effect file such an appeal and at the same time seek the court’s leave to have such an appeal admitted out of the statutory period of time. The proviso does not mean that an intending appellant first seeks the court’s permission to admit a non- existent appeal out of the statutory period”

9. Relying on the Court of Appeal decision in Thuita Mwangi v Kenya Airways Ltd [2003] eKLR, he submits that the decision of whether or not to grant leave to appeal out of time is an exercise of discretion and some of the factors that aid courts in exercising that discretion are; the period of delay, the reason for the delay, arguability of the appeal, degree of prejudice to be suffered by the respondent if extension is granted, the importance of compliance with time limits to the particular litigation or issue and the effect if any on the administration of justice or public interest if any is involved.

10. He submits that the application for stay invokes discretionary powers and relies on Butt v Rent Restriction Tribunal (1982) KLR 417 where the Court of Appeal gave guidance on how the discretion should be exercised. He submits that the discretion should be exercised in such a way as not to prevent an appeal. That if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory. That 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 respondent at the end of the proceedings. That the court will also consider the special circumstances of the case and unique requirements.

11. With regard to substantial loss, he submits that even if the respondent is capable of refunding the money, the court has to consider whether it is fair and just to allow execution to continue which process will naturally cause the applicant some financial burden.

12. With regard to security, he submits that the issue herein arose on alleged oral agreement between the parties to buy land. That in demonstration of good faith, he will await the court’s guidance on the security to provide.

The Respondent’s Submissions 13. With regard to the prayer for leave to file appeal out of time, he has relied on section 79G of the Civil Procedure Act for the submission that an appeal must be filed before leave can be sought. He has also relied on the case of Gerald M’Limbine (supra) for the submission that failure to file an appeal leaves the court without any substratum upon which to exercise its discretion. He contends that without an appeal in place, this court cannot proceed to consider the orders of stay of execution.

14. He submits that the requirement of the law places the onus on the applicant to demonstrate to the court sufficient reasons for the failure to file the appeal on time. That the application was filed after 3 months delay and the reason given is neither true nor sufficient. That the letter for request of judgment is dated 02nd August 2022 which is already beyond the time required to file an appeal. He relies on Diplack Kenya Ltd –v William Muthama Kitonyi [2018] eKLR where the court noted that;“Once there is noncompliance, the burden is upon the party seeking indulgence to satisfy the court why the discretion should nevertheless be exercised in his favour and the rule is that where there is no explanation, there shall be no indulgence… section 79G of the Civil Procedure Act requires that before the court enlarges the time for appealing, the applicant must satisfy the court that he had good and sufficient cause for not filing the appeal in time…that whereas the Civil Procedure Act allows for extension of time for filing appeal, if good and sufficient cause is not shown, failure to act does not constitute a good and sufficient cause.”

15. With regard to the prayer for stay of execution, he submits that the applicant has not demonstrated any substantial loss that would be occasioned to him if the orders are not granted. He has relied on Jessikay Enterprises Ltd v George Kahoto Muiruri [2022] eKLR where the court stated that;“9. The decision of Platt Ag JA, in Kenya Shell Ltd v Kibiru & another [1986] KLR 41, in my humble view set out two different circumstances when substantial loss could arise, and therefore giving context to the 4th holding above. The Platt Ag JA (as he then was) stated inter alia that:“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 the 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…(emphasis added)”

16. He contends that no substantial loss will be occasioned to the applicant considering that the sum in question is Kes 74,500/=. That the case in the trial court was not a pauper suit hence he is sufficiently able to make good the applicant’s claim in any eventuality to such end.

17. With regard to security, he submits that if the court is inclined to grant the orders of stay, the applicant should be ordered to deposit Kes 100,000/= as a pre-condition.

Analysis and Determination 18. I have anxiously considered the application, the affidavit evidence, the submissions and the authorities cited. Has the applicant established sufficient reasons to warrant extension of time to file his appeal out of time? If so on what conditions?

19. 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.

20. The applicant’s single reason for not filing his appeal in time is that he had not received a copy of the Judgment despite following it up.

21. The letter to court seeking a copy of the said Judgment and proceedings is dated August 2, 2022. This is after the 30 days allowed for filing of appeals had expired. And as if that is not bad enough, the application seeking extension of time comes 3 months after the delivered of the Judgment. The applicant’s conduct with respect to his own appeal does not draw the exercise of the discretion of this court in his favour. If he truly had any intentions of seeking the exercise of this court’s discretion, then he would have done so at the earliest. Evidently, this applicant is not serious. For this I adopt the words of the Judge in Diplack Kenya Ltd v William Muthama Kitonyi (2018) eKLR…that before the court enlarges the time for appealing, the applicant must satisfy the court that he had good and sufficient cause for not filing the appeal in time…that whereas the Civil Procedure Act allows for extension of time for filing appeal, if good and sufficient cause is not shown, failure to act does not constitute a good and sufficient cause.”

22. In this case I must find that the applicant has not placed before the court any satisfactory cause for not filing his appeal in time.

23. Having found that I have no reason to deal with issue of stay of execution.

24. The application is without merit and is dismissed with costs.

DATED SIGNED AND DELIVERED THIS 10TH NOVEMBER 2023………………………Mumbua T MathekaJudgeCA MwiwaApplicant’s AdvocatesWasolo & Co. AdvocatesRespondent’s AdvocatesIsika & Associates Advocates