[2022] KEHC 11918 (KLR)

Omare & 2 others v Musa (Miscellaneous Suit E146 of 2021) [2022] KEHC 11918 (KLR) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11918 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Suit E146 of 2021

RN Nyakundi, J

May 18, 2022

Between

Simon Omare

1st Applicant

Nakano Luxury

2nd Applicant

Malack Matoke

3rd Applicant

and

Charles Kongo Musa

Respondent

(Originating from CMCC No 101 of 2020)

Ruling

1. The applicants herein filed a notice of motion dated 6/9/2021 seeking a stay of execution against the exparte judgment entered in favour of the respondent on both liability and award of damages quantified at kshs 159,350/- in CMCC No 101 of 2020. Secondly, the applicants be granted leave to appeal out of time, the ruling of the court below dated 16/4/2021.

2. The aforesaid ruling comprehensively dealt with issues on service of summons with regard to the original claim and subsequent entry of judgment.

3. The factual background of this application is well deponed in the affidavits of Dorcus Cheruiyot annexed to the motion. The main complaint being the failure by the learned trial magistrate not to address the applicant’s proposed defence annexed to the application seeking leave to defend the such in the same vein, service of summons was far below the threshold outlined under order 5 rule 8 of the Civil Procedure Rules.

Determination: 4. It is clear from the record that the applicants approached the trial court for leave to appeal to the High Court. I concur with the trial court the law provides that an application in the order of 43 of the Civil procedure rules provide for the first forum convenience be that of the impugned court. As a court I am obliged to follow the laid down principles on certification for leave and jurisdiction exercised by the learned trial magistrate.

5. There are two fundamental issues in the instant application. First, should orders of stay be granted? The operative law is premised under order 42 rule 6 (1) of the Civil Procedure Rules with ie a rider that no appeal or second appeal shall operate as a stay of the claim or proceedings under a decree or order appealed from except in so far as the court appealed from may order the court appeared from may for sufficient cause order stay of execution of such decree or order. In subsection (2) no order for stay of execution shall be made unless:i)The court is satisfied that substantial loss may result to the applicant.ii)That the applicant has been filed without undue delay.iii)Such security as the court orders for the close performance of such decree or order as may ultimately be binding on the applicants.In the instant application, it is considered that the intended appeal is arguable with high chances of success as the damages awarded did not factor the input of the applicants. Further, that the exparte judgment was arrived at the absence of proper service to the applicants. In essence, the applicants urge this court to take note that they would suffer substantial loss, if the judgment is enforced and executed in favour of the respondent.

6. It is now well established as observed in the various decisions ie Chris Bichage v Richard Nyagaka Tungi 82 Others [2017] EKLR.That an order of stay in any case entailing a judgment of the court below falls within the realm of discretion, upon consideration of the relevant principles, that the appeal is not frivolous, if the order of stay is not granted. The success of the appeal, were it to succeed would be rendered nugatory.

7. Although, at this stage, it cannot be affirmed whether, the success of the appeal on one or other of the grounds of appeal is meritorious. There is foreseeability on these issues. First, it would be a judicious issue whether the applicants were properly served with the court process on the claim filed by the respondent pursuant to order 5 of the Civil Procedure Rules. Second, whether, the denial of a right to be heard guaranteed under article 50 (1) and right to access to justice which is guaranteed under article 48 of the Constitution was properly insulated in the scheme of events before the trial court see (the case of Edward Kiman & Another v Hannah Mukui Gichuki & Another [2015] EKLR). Third, whether, the applicants would suffer substantial loss were the lower court premised exparte judgment was to be invalidated.

8. These are all most questions which cannot be ignored within the backdrop of substantiative loss, the prospect of the appeal succeeding, and whether the respondent is entitled to enjoy the fruits of the judgment from an exparte proceedings, which is void abnitio.

9. In my view, being guided by the principles in Chris Bichage case and inMs Part Relz Maternity v James Karanja Kabia CA 63 of 1997. There is a just cause to stay the execution of the impugned judgment, in CMCC No 101 of 2020. Subsequent to this order or stay, the applicants do deposit the decretal sum of kshs 159,350/- in a joint interest earning account of both counsels to this appeal within 30 days from today’s date.

10. The second limb concerns leave to appeal out of time. The Supreme Court decision in Soyat v Independent Electoral & Boundaries Commission & 7 Others [2014) & Others laid down the guiding principles to apply in respect of matters relating to interpretation and construing the law on the remedy for leave to appeal out of time.

11. In the application before me the record is emphatic that service of summons upon the applicants is a highly contested issue. The intended appeal does raise an issue with regard to the interpretation and application of order 5 of the Civil Procedure Rules on service of summons.

12. Whether or not the respondent satisfied the basic minimum criteria on service of summons would be properly before this honorable court on appeal. Further, whether or not the respondent exparte judgments deprived the applicant their rights to a fair hearing under article 50, right to access justice in article 48 and subsequently a right of appeal to a superior court once aggrieved with the decision of an inferior court or tribunal is a matter to be addressed within the provisions indicated.

13. I am persuaded from the facts of this case extension of time being a creational of equity the court was to invoke the settled principles in (See Paul Wanjohi Mathenge v Duncan Gichake Mathenge [2013] EKLR, Henry Mikara Mwangi v Charles Gichana (CA No 26 of 2004 and Leo Mutisor Rose Hellen Wangari Mwangi(CA No 255 of 1997).

14. From the principles in the above cases I am inclined to exercise discretion to allow the notice of motion dated 30/8/2021 in favour of the applicant with the following conditions attached:1. That the intended appellants do file the record of appeal against the judgment of the lower court in CMCC 101 of 2020 delivered on December 29, 2020 via email in absence of the parties.2. That the intended appellants are hereby ordered to deposit the entire decretal sum of kshs 159,350/- in a joint earning interest account of both counsels or in the alternative with the Deputy Registrar of the High Court, Eldoret.3. That pursuant to section 1A, 1B and 3A of the Civil Procedure Act, interim powers and oxygen rule are hereby invoked any substantive appeal substantive appeal against the ruling dated 16/4/2021 to enable parties focus on the main appeal. The foundation of this being the interlocking issues arising between the ruling and final judgment of the court.4. The costs of the notice of motion to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED AT ELDORET VIA EMAIL THIS 18TH OF MAY 2022. R. NYAKUNDIJUDGEinfo@kglaw.co.ke