[2022] KEHC 9937 (KLR)

Principal Kaewa Harambee Secondary School & another v Kitonyi (Miscellaneous Civil Application E070 of 2022) [2022] KEHC 9937 (KLR) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9937 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Civil Application E070 of 2022

GV Odunga, J

July 19, 2022

Between

Principal Kaewa Harambee Secondary School

1st Applicant

Chairman BOM Kaewa Harambee Secondary School

2nd Applicant

and

Mary Nduku Kitonyi

Respondent

Ruling

1. By a Notice of Motion dated 26th April 2022, the 1st and 2nd Applicants herein seek orders that the court grants them leave to appeal out of time and further that the court stays the execution of the judgment in Machakos CMCC No. E207 of 2020 delivered on 24th March, 2022 by Hon. C.N Ondieki (PM) pending the hearing and determination of the intended appeal.

2. The application was supported by an affidavit sworn by Peter Makau who is the Legal Officer of the 1st and 2nd Applicants insurer which had insured the 1st Applicant’s motor vehicle registration number KBN 273E and at whose instance the above cited suit was defended. According to the deponent, the 1st and 2nd Applicants are dissatisfied with the Trial Magistrate’s judgment and intend to appeal against the same vide their annexed Draft Memorandum of Appeal which intended appeal, they believe has high chances of success.

3. According to the deponent, the 1st and 2nd Applicants are apprehensive that following the delivery of the judgment and the order of stay of execution made by the Trial Magistrate having lapsed on 24th April, 2022, the Respondent is likely to proceed with execution of the said judgment against the 1st and 2nd Applicants herein as there is no stay now in force.

4. He averred that the 1st and 2nd Applicants undertake to lodge the intended appeal expeditiously within such time as this Court may order upon receipt of the typed copies of the proceedings of the Chief Magistrate’s Court at Machakos requested vide their letter dated 13th April, 2022. According to the deponent, the 1st and 2nd Applicants have moved diligently and expeditiously in bringing this Application.

5. The deponent averred that the 1st and 2nd Applicants are willing to abide by any conditions set by this Honourable Court. It was therefore his view that it is therefore in the interest of justice and fairness that the prayers sought in the application be granted.

6. In response to the application, vide her replying affidavit sworn on 17th May, 2022, the Respondent averred that the application is made in bad faith to deny her the fruits of her rightfully obtained judgment. According to her, the application is an afterthought and brought after service of an extracted Decree. She averred that there is no appeal against the judgment sought to be stayed and asserted that there is no explanation why an appeal was not filed within 30 days as stipulated.

7. According to the Respondent, the 1st and 2nd Applicants have not satisfied the conditions for stay in that they have;i.Not shown any substantial loss will be suffered by the applicantii.No appeal has been preferrediii.Not provided any securityiv.Not shown that the Respondent is of straw and cannot repay the decretal amount

8. The Respondent averred that she is a person of substance and a farmer hence can repay the decretal sum in the event that the appeal succeeds.

1st and 2nd Applicants submissions 9. It is submitted that the issues before court are bonafide as per the grounds outlined in the Memorandum of Appeal dated 12th April, 2022. According to the 1st and 2nd Applicants, they are seeking a review of the decretal sum for being excessive considering the nature of injuries sustained by the Respondent and previous awards granted for similar injuries.

10. As to whether the 1st and 2nd Applicants stand to suffer substantial loss, it is submitted that the Respondent has not provided proof that she would be able to repay the sum of Kshs. 1,689,400/- or any provided any asset that would guarantee repayment of the decretal sum should the appeal succeed or provided proof of lack of any liabilities that would prevent her from repaying the decretal sum. According to the 1st and 2nd Applicants, should the Respondent be unable to refund the decretal sum, the 1st and 2nd Applicants shall suffer substantial loss. Reliance was placed on the cases of Equity Bank Limited vs. West Link MBO Limited-Civil Application No. 78 of 2011 and Century Oil Trading Company Limited vs. Kenya Shell Limited Nairobi [2008] eKLR.

11. It was reiterated that tThe 1st and 2nd Applicant are amenable to depositing the entire decretal sum into a joint interest earning account and to abide by any further directions of this court regarding the question of security that will safeguard the interest of all parties.

12. As to whether the application has been brought without undue delay, it is submitted that a delay of 18 days after the lapse of the 30 days stipulated to file an appeal is not inordinate and has not been deliberate. It is submitted that the Respondent will not suffer any prejudice should the orders sought herein be granted and reliance is placed on the case of Almas Hauliers Ltd vs. Abdulnasir Abukar Hassan [2017]eKLR where a delay of 14 days was found not to be inordinate.

13. Reliance was placed on Article 159(2) (d) of the Constitution that courts should administer justice without undue regard to procedural technicalities an d the case of Rail Odinga vs. IEBC & 4 Others[2013]eKLR and Shabbir Ali Jusab vs. Anaar Osman Gamrai & Another[2013]eKLR.

Respondent submissions 14. On behalf of the Respondent, it is submitted that the judgment herein was delivered on 24th March, 2022 in the presence of counsel for the 1st and 2nd Applicants and a 30 days stay was granted by court but no explanation has been given by the Applicants where they were from the time the judgment was read to the time of filing the present application. It submitted that the Applicants have not sworn an affidavit to explain the delay and reasons for the delay while the affidavit sworn by the Legal Officer does not bear any averment on the same. As a result of the failure to give any reasons, the Respondent urged the court to find that the present application is an afterthought and made in bad faith to delay and frustrate a successful litigant from enjoying the fruits of her rightfully obtained judgment.

15. Regarding the order for stay of execution of the judgment, it was submitted that the 1st and 2nd Applicants have failed to satisfy the conditions for stay to warrant the court exercise its discretion in their favour. It was submitted that the provisions upon which the court exercises its discretion are not mandatory but discretionary.

16. According to the Respondent, the court has to be satisfied that there is an appeal with chances of success and if stay is not granted, the appeal or the intended appeal will be rendered nugatory. However, in tis case, there is no appeal hence the Applicants have not shown that the intended appeal has chances of success.

17. As to whether the 1st and 2nd Applicants will suffer substantial loss, it is submitted that the applicants have not shown the loss they would suffer if stay is not granted. According to the Respondent, the Legal Officer is not a party to the suit and will not suffer any loss at all. It was submitted that the deponent of the supporting affidavit has neither averred what loss he stands to suffer nor has he demonstrated whether the 1st Respondent will be unable to refund the decretal sum. It was submitted that the Respondent being a successful litigant should not be shut down from enjoying the fruits of her judgment based on the decision in the case of Machakos Civil Appeal No. E36 of 2021,Indus Trading Ltd & Another vs. Charles Aricha and Machakos Civil Appeal No. 43 of 2020, Geoffrey Wainaina Kinyanjui vs. Joseph Mwikya Musaa.

18. The Respondent urged the court to direct that half the decretal sum be paid over to her since there is no appeal filed against the judgment and she is entitled to the fruits of judgment. According to the Respondent, the 1st and 2nd Applicants did challenge her case before the Trial Court hence the intended appeal is only on quantum. It was submitted that the Respondent’s assertion that she can repay the decretal sum has not been challenged by the Applicant and reliance was placed on the Court Appeal Nairobi, Civil Application No.252/2000, Mohan Meakin Ltd vs. Mutunga Kiundi where the court ordered for half of decretal sum be paid to the Applicant. The Respondent urged the court to dismiss the application with costs.

Determination 19. I have considered the application, affidavits in support and in opposition to and the submissions.

20. 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.”

21. From the foregoing, it comes out that the decision whether or not to grant leave to appeal out of time or to admit an appeal out of time is an exercise of discretion and just like any other exercise of discretion. Being an exercise of judicial discretion, like any other judicial discretion, it must be based on fixed principles and not on private opinions, sentiments and sympathy or benevolence but deservedly and not arbitrarily, whimsically or capriciously. Such discretion must therefore be exercised on the basis of evidence and sound legal principles, with the burden of disclosing the material falling squarely on the supplicant for such orders. One of those judicial principles expressly provided for in the above provision is that the applicant must satisfy the Court that he has a good cause for doing so, since as was held in Feroz Begum Qureshi and Another vs. Maganbhai Patel and Others [1964] EA 633, there is no difference between the words “sufficient cause” and “good cause”. It was therefore held in Daphne Parry vs. Murray Alexander Carson [1963] EA 546 that though the provision for extension of time requiring “sufficient reason” should receive a liberal construction, so as to advance substantial justice, when no negligence, nor inaction, nor want of bona fides, is imputed to the appellant, its interpretation must be in accordance with judicial principles. If the appellant had a good case on the merits but is out of time and has no valid excuse for the delay, the court must guard itself against the danger of being led away by sympathy, and the appeal should be dismissed as time-barred, even at the risk of injustice and hardship to the appellant.

22. As to the principles to be considered in exercising the discretion whether or not to enlarge time inFirst American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others Nairobi (Milimani) HCCC No. 2255 of 2000 [2002] 1 EA 65 the Court set out the factors to be considered in deciding whether or not to grant such an application and these are (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. This was the position reiterated in Edith Gichugu Koine vs. Stephen Njagi Thoithi [2014] eKLR, where the Court of Appeal set out the principles undergirding an Application for leave to file an appeal out of 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...”

23. Similarly, in Leo Sila Mutiso vs. Helen Wangari Mwangi Civil Application No. Nai. 255 of 1997 [1999] 2 EA 231 the Court of Appeal set out the factors to be considered in deciding whether or not to grant such an application and these are first, the length of the delay; secondly the reason for the explanation if any for the delay; thirdly, (possibly), the chances of the appeal succeeding if the application is granted i.e. 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; and fourthly, the degree of prejudice to the respondent if the application is granted and 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. However, in the case of Thuita Mwangi vs. Kenya Airways Ltd [2003] eKLR, the Court explained that follows:“The list of factors a court would take into account in deciding whether or not to grant an extension of time is not exhaustive. Rule 4 of the Court of Appeal Rules (Cap. 9 sub-leg) gives the single judge unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed so long as the factor is relevant to the issue being considered.”

24. The Supreme Court in Civil Application No. 3 of 2016 - County Executive of Kisumu vs. County Government of Kisumu & 7 Others had this to say at page 5 said:-“… 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.5. Whether there will be any prejudice suffered by the respondents if the extension is granted6. Whether the application has been brought without undue delay; and7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

25. In this case, while seeking the 1st and 2nd Applicants application be dismissed with costs, the Respondent primarily contends that no explanation for the delay has been averred by the 1st and 2nd Applicant or the insurance legal officer. That despite the insurance Legal Officer swearing an affidavit in support of the 1st and 2nd Applicants application, there is no single averment in his affidavit to state the delay. In Samwel Ayienda Mokua vs. Tinga Trading Company Limited Civil Application No. Nai. 184 of 2007, it was held that wherever there is a delay, even for one day, there must be some explanation for it otherwise extension may not be granted.

26. Regrettably, despite the Legal Officer swearing the affidavit in support of the 1st and 2nd Applicants application, he did not state the reasons for the delay. The fact that the alleged delay of 18 days is submitted not to be inordinate, an explanation for the delay must be averred in the affidavit in support of the application seeking extension of time. The submissions by the Respondent that judgment was read in the presence of counsel for the 1st and 2nd Applicants was not responded to by the 1st and 2nd Applicants.

27. The averment by the insurance Legal Officer that the 1st and 2nd Applicants undertake to lodge the intended appeal expeditiously if allowed by court upon receipt of the copies of typed proceedings cannot be an excuse for not filing the appeal within the stipulated time. In fact he does not state whether it was the reason for the delay to file the appeal. The attached letters to the Executive Officer, Machakos Law Courts requesting to be furnished with copy of typed proceedings cannot be deemed to be sufficient cause for not filing the appeal within the stipulated time. In any case the filing of the Memorandum of appeal is not dependent on the presence of the typed court prpceedings since the reasoning of the Trial Magistrate is in the copy of the judgment which was delivered in the presence of counsel.

28. All in all, there is completely no reason advanced by the 1st and 2nd Applicants or the insurance Legal Ofifcer why the appeal was not lodged within time. In the absence of that explanation, this Court has no material on the basis of which it can exercise its discretion in favour of the 1st and 2nd Applicants. Without granting an extension of time to file the appeal, the limb for stay of execution of judgment must necessarily fall by the wayside.

29. However, even if the application was to be considered on merit it would still fail the test for the grant of stay. The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows: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.

30. Neither the 1st and 2nd Applicants nor the insurance Legal Officer has shown the substantial loss they stands to suffer if the stay is not granted. In this case the 1st and 2nd Applicants, through an affidavit, sworn, not by themselves but by the insurance Legal Officer have only expressed their apprehension that there being no stay of execution order, the Respondent is likely to proceed with execution of the Trial Court judgment against them. No averment has been made by the insurance Legal Officer that if the decretal sum is paid over to the Respondents, the Respondents is unlikely to refund the same in the event that the intended appeal succeeds. The Respondent has stated on oath that she is of substance and a farmer hence capable of repaying the decreta sum in the event the intended appeal succeeds. That averment remains uncontroverted.

31. On the first principle, Platt, Ag.JA (as he then was) in Kenya Shell Limited vs. Kibiru [1986] KLR 410, at page 416 expressed himself as follows:“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 corner stone of both jurisdictions for granting a 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”.

32. On the part of Gachuhi, Ag.JA (as he then was) at 417 held:“It is not sufficient by merely stating that the sum of Shs 20,380. 00 is a lot of money and the applicant would suffer loss if the money is paid. What sort of loss would this be? In an application of this nature, the applicant should show the damages it would suffer if the order for stay is not granted. By granting a stay would mean that status quo should remain as it were before judgement. What assurance can there be of appeal succeeding? On the other hand, granting the stay would be denying a successful litigant of the fruits of his judgement.”

33. Dealing with the contention that there was no evidence that the 1st Respondent would be able to refund the decretal sum if paid over to the Respondent, Hancox, JA (as he then was) in the above cited case when he expressed himself as follows:“I therefore think in the circumstances that these comments were unfortunate. Nevertheless, having considered the matter to the full, and with anxious care, there is in my judgement no justification whatsoever for holding that there is a likelihood that the respondents will not repay the decretal sum if the appeal is successful and that the appeal will thereby be rendered nugatory. The first respondent is a man of substance, with a good position and prospects. It is true his house was, in his words, reduced to ashes, but I do not take that against him. Both seem to me to be respectable people and there is no evidence that either will cease to be so, in particular that the first respondent will not remain in his job until pensionable age.”

34. Therefore, the mere fact that the decree holder is not a man of means does not necessarily justify him from benefiting from the fruits of his judgement. On the other hand, the general rule is that the Court ought not to deny a successful litigant of the fruits of his judgement save in exceptional circumstances where to decline to do so may well amount to stifling the right of the unsuccessful party to challenge the decision in the higher Court. In Machira T/A Machira & Co Advocates vs. East African Standard (No 2) [2002] KLR 63 it was held that:“to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court.”

35. Instead of responding to the said averment, the Applicants cose, quite inappropruiately to deal with the matter in the submissions. It is however trite law that submissions cannot take the place of evidence as held by the Court of Appeal in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR.

36. In the premises, the Motion dated 26th April, 2022 fails and is dismissed with costs to the Respondent.

37. It so ordered.

READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 19THDAY OF JULY, 2022. G V ODUNGAJUDGEDelivered in the presence of:Mr Nyamumbo for the ApplicantMr A. K Mutua for the RespondentCA Kevin