[2022] KEHC 10509 (KLR)

Regina & another v Maina (Miscellaneous Application E332 of 2021) [2022] KEHC 10509 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10509 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E332 of 2021

JK Sergon, J

June 17, 2022

Between

Maina Wacera Regina

1st Applicant

Maina Gichuki

2nd Applicant

and

Geofrey Mbuthia Maina

Respondent

Ruling

1. The Notice of Motion Application before this court is dated 12th July, 2021 and is seeking for orders that;i.Spent;ii.Spent;iii.This honorable court be pleased to extend time and grant leave to the Applicant to lodge a Memorandum of Appeal out of time against the judgment and decree entered against the Applicant in CMCC 4636 of 2019 by Honorable D.O Mbeja (Mr.) Principal Magistrate delivered on 4th June, 2021;iv.The honorable court be pleased to stay execution of the judgment and decree in Milimani Civil Suit No. 4636 of 2019 pending the hearing and determination of the intended appeal;v.Costs of the Application be in the cause.

2. It is supported by the grounds on the face of it and the depositions in the Supporting Affidavit sworn by Purity Wambui Waikwa on 12th July, 2021.

3. It is stated that the impugned judgment was delivered on 4th June, 2021 which the Applicant is aggrieved and wishes to appeal but the time within which to file an appeal has since lapsed hence this Application.

4. Further that when judgment was delivered on 4th June, 2021, the firm of Kimondo Gachoka Advocates which were and still are on record for the Applicants had challenges obtaining the copy of the said judgment hence was not in a position to advice the Applicants and receive instructions to file Appeal within the statutory limit.

5. It is further stated that the Application has been brought in good faith and the Respondent will suffer no prejudice or damage that cannot be compensated by costs if this Application is allowed.

6. The Applicants further contend that they are apprehensive that the Respondent may commence execution proceedings against them occasioning hence will occasion them substantial loss and prejudice since there is a likelihood that they may not recover the decretal sum and the intended Appeal will be rendered nugatory if the instant Application is not allowed.

7. It is further stated that the Applicants have an arguable appeal with high chances of success and that they are willing to provide a bank guarantee or a reasonable security that this honorable court may order.

8. The Application is opposed by the respondent who filed the Replying Affidavit he swore and dated 19th August, 2021. It is stated that the Application baseless, non-starter an abuse of the court process and is only meant to delay the Respondent’s enjoyment of his fruits of the judgment.

9. It is further contended that the impugned judgment should not be disturb as doing so will aid the Applicants’ ill intentions of delaying the Respondent from enjoying its fruits. That the intended appeal lodged is not an automatic stay of execution and that the Applicants have not demonstrated the irreparable lose they are likely to suffer if stay is not granted.

10. The Respondent further states that the Applicants’ hands are dirty as far as this application and the equitable prayer of stay since they failed to make use of the stay granted by the trial court during the delivery of the judgment. It is posited that the intended appeal raises no pertinent questions worthy of the attention of this court and the same should be dismissed with costs. He prays that in the event this court allows the Application, then 2/3 of the decretal sum should be released to the Respondent and the other 1/3 should be held in a joint interest earning account but insists that the Application should be dismissed.

11. This Application was canvassed by way of written submissions. Only the Applicants filed their submissions. The Respondent did not file any submissions. I have read and considered the Application, the supporting affidavit and the Replying affidavit together with the Applicants’ submissions.

12. The law on enlargement or extension of time is set out under Order 50 Rule 5 which provides;“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”

13. 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 orderProvided 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.”

14. The High Court in Linda Bomu v Kiluwa Limited [2020] eKLR while addressing an application such as this held that is a discretionary power. It was held;“I am well aware that extension of time to a party who has had his day in court is not a right but a discretion by the court to facilitate the justice of the case. I am also appreciative that the decree-holder is entitled to her fruits of litigation just like the judgement debtor is entitled to his right to litigate on appeal.”

15. Conditions to be satisfied by a party seeking an order for extension were well set out in Edith Gichugu Koine vs. Stephen Njagi Thoithi [2014] eKLR, 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...”(emphasis added)

16. The period of delay in the instant matter is about 44 days. In my view this delay is not inordinate. The explanation given is that the typed judgment could not be obtained timely. This explanation is plausible. The Respondent can only be prejudiced through the delay of getting the fruits of this judgment by this extension but the same can be compensated by way of interests and costs. I find that the Applicants have satisfied the grounds for grant of leave to file an appeal out of time.

17. On the application for stay of execution of the judgment pending appeal, I am guided by the provisions of Order 42 rule 6(2) of the Civil Procedure Rules, 2010, 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; andb.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.

18. From the forgoing, it is safe to say that for a grant of stay order to issue, an applicant must satisfy the court that;a.Substantial loss may result unless the order is madeb.The application has been made without unreasonable delayc.Security for costs as the court orders has been given

19. It is equally important at this point to note that the purpose of an order for stay is preservation of the subject matter and that the courts power to grant or deny such orders is discretionary which should be exercised judiciously and ensure a balance between the rights of both parties.

20. The court, inRWW vs. EKW [2019] eKLR, addressed its mind to the purpose of a stay of execution order pending appeal, in the following words:“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.9. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”

21. The prayer for stay in the instant Application has been brought promptly. There is, however, no plausible explanation as to the loss that may result if stay is not granted. The decretal sum in question is Kshs. 3,030,800 which by Kenyan standards is a huge sum considering the current economic timelines. If stay of execution is not granted, the intended appeal will be rendered nugatory since this amount is the subject of the intended appeal according to annexed Memorandum of Appeal.

22. In order to balance the rights of parties, stay should be granted.

23. In the end, the motion dated 12th July 2021 is allowed thus giving rise to issuance of the following orders:i.The applicant is granted leave of 15 days to appeal out of time.ii.There be an order for stay of execution of the trial court’s decree pending the hearing and determination of the intended appeal on condition that the decretal amount is deposited in an interest earning account in the joint names of the advocates or firms of advocates within 45 days from the date hereof. In default the order for stay shall be deemed to have been refused.iii.Costs of the application to abide the outcome of the intended appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. .............................J. K. SERGONJUDGEIn the presence of:…………………………… for the 1st Applicant…………………………… For the 2nd Applicant…………………………… for the Respondent