[2023] KEHC 27382 (KLR)

Sioge v Nyege & another (Miscellaneous Civil Application E138 of 2022) [2023] KEHC 27382 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27382 (KLR)

Republic of Kenya

In the High Court at Nakuru

Miscellaneous Civil Application E138 of 2022

HI Ong'udi, J

December 14, 2023

Between

Rodgers Oyarao Sioge

Applicant

and

David Michael Ongoma Nyege

1st Respondent

Joseph Nyangau Nyapeni

2nd Respondent

Ruling

1. Rodgers Oyaro Sioge the Applicant on 9th November, 2022 filed the Notice of Motion dated 2nd November, 2022 seeking the following orders;a.Spentb.The Honourable court be pleased to extend time for filing of a memorandum of appeal against the judgement delivered by Honourable E.S. Soita dated 5th September, 2022 in Molo Senior Magistrate’s Court Case No. 200 of 2018. c.The Honourable court be pleased to give a temporary stay of execution of the judgment issued on 5th September, 2022 in Molo Senior Magistrate’s Court Case No. 200 of 2018 pending the hearing and final determination of this application.d.The Honourable court be pleased to give stay of execution of the judgment issued on 5th September, 2022 in Molo Senior Magistrate’s Court Case No. 200 of 2018 pending the hearing and determination of the intended appeal against the said judgment.e.Costs of this application be in the cause.

2. The application is supported by the grounds on its face plus the Applicant’s supporting affidavit. The main grounds are that:i.The impugned judgment was delivered without notice to the Applicant’s advocate.ii.The court did not notify the Applicant’s counsel of the delivery of the said judgment. He only learnt of its delivery when his counsel made inquiries at the registry.iii.That the intended appeal is against the entire judgement and it raises weighty triable issues.

3. The Applicant has annexed a certified copy of the impugned judgement delivered on 5th September, 2022.

Respondent’s Case 4. The 1st Respondent did not oppose the application however under the condition that the Applicant deposits the entire decretal amount in a joint interest earning account.

5. The 2nd respondent filed a replying affidavit sworn on 1st February, 2023. He was the defendant in the Molo Chief Magistrate’s Court. Civil Suit No. 200 of 2018. He averred that after delivery of Judgment the Applicant was given time to file an Appeal which he did not. Further that the stay of execution order sought is a delaying tactic which is misplaced. However, in the event that the court considers otherwise it should order the Applicant to deposit the decretal sum in court as security.

Submissions The Applicant’s submissions 6. The same are dated 24th November, 2023 having been filed by H. Kipkorir & Co Advocates. On the issue of extension of time for lodging a Memorandum of Appeal counsel cited Section 79G of the Civil Procedure Act and submitted that the delay in filing the appeal was not inordinate nor deliberate. Further that the delay had been explained in the supporting affidavit. Reliance was placed on the cases of:i.Paul Kiriga MwanganyivKenya Wildlife Services and another Mombasa HCCA No. 120 of 2020. ii.Charles Karanja Kiiru V Charles Githinji Muigwa. Civil Appeal No. 71 of 2016 (Court of Appeal)

7. Counsel further submitted on the pre-requisite conditions to be met when one seeks an order of stay of execution as laid out in Order 42 of the Civil Procedure Rules. These are:a.The court should be satisfied that substantial loss may ensue if the application is not allowedb.The Application has been brought without unreasonable delayc.Whether the Applicant will be prejudiced if the application is not allowed and the sum rendered nugatory and whether the appeal is arguable. On this point counsel relied on the following cases:i.Ishmael Kagunyi TandevHousing Finance Company of Kenya Ltd [2005] eKLRii.Kenya Kazi Security Services LtdvKenya National Private Security Workers Union [2013]eKLR.iii.Kenya Tea Growers Association & Another v Kenya Planters & Agricultural Workers Union Civil Appeal Nairobi No. 72 of 2001 among others.d.Such security as the court orders for the due performance of such decree or orders as ultimately may be binding on him.

1st Respondent’s submissions 8. These were filed by Murimi, Ndumia, Mbago & Muchela advocates and are dated 21st June 2023. Counsel mainly submitted on the issue as to whether the Applicant should deposit the entire sum in an interest earning joint account. His answer was in the affirmative. Relying on Order 42 Rule 6 Civil Procedure Rules and the case of Mwaura Karuga t/a Limited Enterprises v Kenya Bus Services Ltd and 4 Others [2015] eKLR, it is counsel’s submission that the Applicant must offer security for the due performance of the decree.

9. Further reliance was placed on the case of Gianfranco Manenthi & anothervAfrica Merchant Assurance Company Ltd [2019] eKLR whereby counsel argued that a debt is already owed and is due for payment by virtue of the Judgment already delivered. The same would only await determination of the Appeal, and none of the parties should be inconvenienced. Also see: Nduhiu GitahivWarugongo [1988] KLR 621; IKAR 100; [1988 – 92], 2 KAR 100

10. Counsel further argued that the purpose of security is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. He referred to the cases of:i.Arun C. SharmavAshana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR.ii.Gianfranco Manenthi & another (supra) in support

The 2nd Respondent’s submissions 11. These were filed by Magare Musundi & Co. Advocates and are dated 28th July, 2023. The main issue identified by counsel is whether the application to file appeal out of time is merited. He referred to Section 79G of the Civil Procedure Act on the timelines within which an appeal should be filed. In support counsel referred to the cases of:i.Joseph Kakomo MbengavMaingin Charles & another 2018 eKLRii.Daphine ParryvMurray Alexander Carson [1963] E.A 546iii.First American Bank of Kenya LtdvGulab P Shah & 2 others Nairobi (Milimani) HCCC No. 2255 of 2000 (2002) I E. A 65.

12. He thus contends that for an Applicant to be granted leave to file an appeal out of time he/she ought to give sufficient reasons as to what caused the delay in filing the Appeal within the prescribed time. He submits that the Applicant had already been granted leave to file an Appeal, and the present application is to make him have a second bite of the cherry. The court should therefore not allow him to do so. He urged the court to dismiss the application.

Determination 13. I have carefully considered the Notice of Motion plus the supporting grounds and affidavit, the responses, all the submissions, the several cited authorities and the law. The main issue for determination is whether the Applicant is merited of the two orders sought. The orders are:i.Leave to file appeal out of time in favour of the 1st Respondent and against the Applicant who was ordered to pay the 1st Respondent Ksh 526,090/= with costs and interest from 24th December, 2015 until payment in full. The judgment was delivered in the presence of the Advocates for both Respondents. It is therefore true that neither the Applicant nor his advocate were present at the time of delivery of the said judgmentii.Whether the court should grant the order for stay of execution pending the hearing and determination of the intended appeal.

14. It is not disputed that the Applicant herein was a 3rd party in Molo Chief Magistrate’s Court Civil Case No 200 of 2018. Judgement was delivered in the said case on 5th September 2022 (Annexture ROSI). The said Judgement is in favour of the 1st respondent and against the Applicant who was ordered to pay the 1st respondent Ksh 526,090/= with costs and interest from 24th December, 2015 until payment in full. The judgment was delivered in the presence of the Advocates for both respondents. It is therefore true that neither the Applicant nor his advocate were present at the time of delivery of the said judgment.

Leave to file Appeal out of time 15. 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 the 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”.

16. The impugned judgment having been delivered on 5th September 2022, means any Appeal rising therefrom ought to have been filed on or before 5th October 2022. That was not done in this case and to date no Appeal has been filed by the Appellant. He however elected to first seek leave of the court before filing the intended Appeal. The Application was filed about 34 days after the expiry of the time for filing an Appeal. The 2nd Respondent in the submissions has referred to the Applicant having in the first instance not complied with the time given to him for filing the appeal. It is not clear when the said period was given to him and how much time the period was. However, if the period he is referring to is the one stated in Section 79G of the Civil Procedure Act then that is the statutory period and he did not have to seek to be granted that one.

17. Section 79G of the Civil procedure Act makes provision for filing an Appeal out of time provided the Applicant can give good and sufficient cause for not filing the appeal in good time. The next issue then, is whether the Applicant has given good and sufficient cause for failure to file an Appeal in time. From the submissions the 1st Respondent who is the beneficiary of the judgment has no objection to the leave being granted.

18. The Applicant’s main reason for failure to comply with Section 79G Civil Procedure Act is that he was not aware of the date for delivery of the judgment and the court did not notify him of the same. As already pointed out the Applicant and his Advocate were not present in court when the judgment was delivered. Paragraph 8 of the judgment (Annexure ROSI) reads“It should be noted that the 3rd party failed to attend further hearings or call any witnesses with the court closing the 3rd party’s case. Parties were given an opportunity to file submissions with the plaintiff filing submissions on 22nd August, 2022 and Defendant on 27th July, 2022”A further reading of the above shows that the Applicant was not in court when the date for judgment was issued. There is no evidence from the Respondents nor the court showing that he was informed of the date for judgment and he elected not to attend court. It took his own initiative to find out what the position of the suit was.

19. Considering the observation by Chepkwony J in Paul Kiriga Mwanganyi (supra) which I am in total agreement with it is my view that the Applicant’s delay in acting herein was not deliberate. I also rely on the case of First American Bank of Kenya Ltd (supra). Given the circumstances of the case the 65 days delay is not inordinate. He had a right of Appeal which may only be denied in very extreme circumstances. His prayer for leave to file Appeal out of time is therefore granted.

Issue (ii) Stay of execution 20. The issue of stay of execution pending appeal is anchored under Order 42 Rule 6 of the Civil Procedure Rules which provides thus:Stay in case of appeal [Order 42, rule 6. ](1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)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.(3)Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.

21. Counsel have heavily submitted on the above issue. All I will say is that it’s the duty of the party seeking the order of stay to satisfy the court that if the order is not granted he/she will suffer substantial loss. It is also the duty of the Applicant to avail security for due performance of the decree or order or show why such security should not be availed to the court. See Mwaura Karuga t/a Limit Enterprise (Supra) and Gianfranco Manenthi & another (supra), among others.

22. From what has been presented to this court by the Applicant all he says is that his intended Appeal has very good grounds and raises weighty issues. No intended /draft appeal has been presented to the court, for it to see the issues/grounds he wishes to raise. The lower court judgment is before the court and it contains a summary of the material that was presented before the lower court. In his supporting affidavit he does not indicate what he does nor his source of income to enable the court ascertain whether to grant the stay or not or on what condition/conditions the stay may be granted.

23. After due consideration of all the above I will grant the Applicant’s prayer for stay of execution but it will be conditional. His application dated 2nd November, 2022 is allowed as follows:i.Leave to file Appeal out of time is grantedii.The intended Appeal to be filed within 21 days from the date of this Rulingiii.There shall be stay of execution of the decree in Molo Chief Magistrate’s Court Civil Case No. 200 of 2018 on the following conditions:a.The decretal sum of Ksh 526,090/= to be deposited in joint interest earning account in the names of the Applicant and 1st Respondent.b.The deposit above should be made within 30 days from the date of this ruling.c.Failure to comply with the above conditions will lead to an automatic waiver of the order of stay of execution and the 1st Respondent will be at liberty to execute.d.Costs shall be in the cause.Orders accordingly

DELIVERED VIRTUALLY, DATED AND SIGNED THIS 14TH DAY OF DECEMBER, 2023 IN OPEN COURT AT NAKURUH. I. ONG’UDIJUDGE