[2022] KEHC 12423 (KLR)

Progressive Credit v Martin Kinoti Kinyua (Miscellaneous Application E237 of 2022) [2022] KEHC 12423 (KLR) (Civ) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12423 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E237 of 2022

JN Mulwa, J

July 7, 2022

Between

Progressive Credit

Applicant

and

Martin Kinoti Kinyua

Respondent

(An Application for extension of time to lodge an appeal out of time from Ruling delivered by Hon Murage on January 21, 2022 in the Chief Magistrate's Court at Milimani in CMCC no 3727 of 2018)

Ruling

1. Before court is a Notice of Motion dated April 19, 2022 brought by the applicant under order 50 rule 5 of the Civil Procedure Rules, 2010 and sections 3A, 63(e), 79G and 95 of the Civil Procedure Act and all other enabling provisions of law. The applicant seeks an order of extension of time within which to lodge an appeal against a ruling delivered on January 21, 2022 in Milimani CMCC no 3727 of 2018. The applicant is also seeking a stay of the proceedings in Milimani CMCC no 3727 of 2018 pending the hearing and determination of the intended appeal.

2. The application is supported by the affidavit of Collins Mbatia, the applicant’s legal officer. He averred that the impugned ruling was not availed to them immediately after delivery, and when they got a hold of it, it had a typographical error and their advocate returned it to court for rectification. However, it was not availed again until after the period within which to appeal had lapsed. As such, the applicant proceeded to file an application in the lower court for extension of time within which to seek leave to file an appeal against the impugned ruing, which application was allowed on April 5, 2022. In his view therefore, the delay in filing the appeal is not inordinate and is therefore excusable.

3. Further, he avers that the applicant has an arguable appeal with high chances of success as demonstrated by the annexed draft Memorandum of Appeal. In addition, he contends that if the proceedings in the lower court are not stayed, the intended appeal will be rendered nugatory and the applicant will suffer substantial loss. Lastly, he states that the respondent is unlikely to suffer any prejudice if the application is allowed as he shall be granted an equal opportunity to respond to the appeal.

4. The respondent did not file any response to the application so it is essentially unopposed.

5. The first issue for determination is whether the applicant has made out a case for extension of the time within which to file an appeal.Section 79G of the Civil Procedure Act sets the time within which an appeal to this court should be filed but also makes provision for admission of an appeal out of time. It provides thus:“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.”

6. From the above provision, it is clear that granting of extension to file an appeal out of time is a matter of court’s discretion which must be exercised judiciously upon sufficient cause being shown. In the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, the Supreme Court set out the guiding principles for the exercise of such discretion as follows:“… 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 granted;6. 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."

7. Similarly, in Leo Sila Mutiso v Rose Hellen Wangari Mwangi: Civil Application no Nai 251 of 1997 (unreported), the Court of Appeal held that:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.”

8. In the present case, the applicant’s contention that the delay in filing the appeal was occasioned by the failure by the trial court to furnish it with a rectified copy of the impugned ruling in good time was not disputed. Indeed, the applicant has annexed a ruling erroneously indicating that the impugned ruling was delivered on December 21, 2022 instead of January 21, 2022. Further, the Applicant has annexed an order issued by the trial court on April 5, 2022 by which its application in the said court for extension of time within which to seek leave to appeal against the impugned ruling was allowed. In the circumstances, I find that the Applicant has tendered a reasonable explanation for the delay in filing an appeal against the impugned ruling.

9. Further, it is clear that the instant application for extension of time was filed without any undue delay as it was brought on April 19, 2022 just fourteen (14) days after the trial court’s order of April 5, 2022. In addition, I am persuaded that the Defendant does not stand to suffer any prejudice if the extension sought by the Applicant is granted particularly since he did not participate in these proceedings. I am therefore minded to exercise my discretion to extend the time within which the applicant shall file an appeal against the trial court’s ruling of January 21, 2022.

10. The second issue for determination is whether the proceedings in the trial court should be stayed. Stay of proceedings is normally regarded as a grave judicial action which seriously interferes with the right of a litigant to conduct litigation and therefore the test is very high and stringent, see Kenya Wildlife Service v James Mutembei [2019] eKLR. See also Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332 where it is stated that:“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”

11. In the case of Global Tours & Travels Limited; Nairobi HC Winding Up Cause no 43 of 2000, Ringera J (as he then was) stated as follows;“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice...the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis added)

12. In the instant case, I hold the considered view that it is in the interest of justice to stay the proceedings in Milimani CMCC no 3727 of 2018 pending the hearing and determination of the intended appeal. I have perused the grounds in the applicant’s draft Memorandum of Appeal and am satisfied that the intended appeal is not a frivolous one. Further, I note that the appeal mainly concerns the reopening of the applicant’s case in the trial court. The applicant is the plaintiff in the said case. If the proceedings are not stayed, the trial court may proceed to hear the respondent’s case and deliver a judgment before the hearing and determination of the intended appeal. The result will be that the intended appeal will be rendered nugatory or an academic exercise. In the upshot, I find that the prayer for stay of proceedings in Milimani CMCC no 3727 of 2018 has merit.

13. For the foregoing, the Notice of Motion dated April 19, 2022 is allowed with no order as to costs.Orders accordingly.

DATED SIGNED AND DELIVERED THIS 7TH DAY OF JULY 2022. J N MULWAJUDGE