[2022] KEHC 260 (KLR)

Tula General Contractors & Suppliers Ltd v Registered Trustees of Regina Pacis University College (RPUC) (Civil Suit 36 of 2015) [2022] KEHC 260 (KLR) (Commercial and Tax) (25 March 2022) (Ruling)

Neutral citation: [2022] KEHC 260 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil Suit 36 of 2015

A Mshila, J

March 25, 2022

Between

Tula General Contractors & Suppliers Ltd

Plaintiff

and

Registered Trustees of Regina Pacis University College (RPUC)

Defendant

Ruling

BACKGROUND 1. The directions given were that the two Applications be canvassed together. The first Application is a Notice of Motion dated 13th October 2020 brought under the provisions of Section IA (1) (2) (3) 13 and 3A of The Civil Procedure Act, and Order 42 Rule 6, 51 of The Civil Procedure Rules. The Application was supported by the Affidavit of SISTER MARIE TERESA GACAMBI and the grounds on the face of it; The Applicant sought the following orders that;a.Court to grant a stay of execution of the Judgment and orders of the High Court Civil suit no 36 of 2015 delivered by Hon. Justice Grace Nzioka on 28th May, 2020 pending the hearing and determination of this application.b.The court to grant a stay of execution of the Judgment and orders of the High Court Civil Suit No. 36 of 2015 delivered by Hon. Justice Grace Nzioka on 28th May, 2020 pending the hearing and determination of the intended Appeal.c.The court to make such order or alternative order as the justice of the case may require.

2. It was stated that the Respondent herein filed Nairobi High Court Commercial & Admiralty Civil suit no 36 of 2015 Tula General Contractors & Suppliers LTD -vs- the Registered Trustees of Regina Pacis University College & anor.

3. The suit proceeded for hearing and judgment was delivered by Hon. Justice Grace Nzioka on 28th May, 2020 in favour of the Plaintiff/ Respondent herein for the sum of Kshs.8, 223,680/= plus interests at court rates from the date of judgment till payment in full.

4. The Applicant herein was dissatisfied with part of the judgment of the lower Court and desires to challenge the same by way of Appeal and has since lodged and served a Notice of Appeal.

5. On 8th October, 2020, Front Bench Auctioneers being agents of the Plaintiff/ Respondent herein proclaimed the Appellants/Applicant movable property in execution of the decree and indicated that they intended to sell the said property at a public auction within 7 days if the Appellant/Applicant did not pay the full decretal amount of Kshs.8, 545, 163 plus auctioneer’s fees amounting to Kshs.1, 180, 868. 58.

6. If the Application is not allowed, the Plaintiff/Respondent will proceed to sell the Applicants movable property thereby rendering this application and the intended Appeal nugatory, further the Applicant stands to suffer substantial loss and damage if the Plaintiff/Respondent proceeds to execute.

7. The delay in filing this application was occasioned by the fact that parties were supplied with a copy of the judgment on 28th August, 2020 after having made numerous requests to be furnished with a copy to the Nairobi Commercial and Admiralty Division Registry.

8. The Respondent filed a Replying Affidavit dated 22nd October 2020 and stated that the prayers for stay being sought for are made in absolute bad faith and an abuse of the Court process as the Defendant/applicant does not exist independently at all according to the Commission of Higher Education but it does exist under the aegis or a constituent college of Catholic University of East Africa such that it has no independent property that is attachable. Thus, the intended attachment stands frustrated as Catholic University of East Africa has clearly and categorically stated that the proclaimed property belongs to it and not the Defendant/Applicant that operates from its location/situation. The property proclaimed by the Auctioneer cannot thus be attached for the above reasons. The Defendant/Applicant has no physical existence and cannot be attached at all.

9. The second Application is a Notice of Motion dated 16th September 2021 brought under Section 7 of the Appellate Jurisdiction Act, Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules. The Application was supported by the sworn Affidavit of IBRAHIM SOMO who sought the following orders;a)The time for giving Notice of Appeal against the Judgment of this Court, Hon Justice Nzioka be extended/enlarged by 14 days.b)Notice of Appeal be deemed as filed upon the payment of the fees

10. The Appellant not being satisfied with the Judgment of the High Court intends to file an Appeal in the Court of Appeal as the Appellant's case was not allowed as prayed for in the sum Kshs.33, 784,700/=, interests and costs; instead the Hon Court awarded it Kshs.8, 223,680. 00 with interests from the date of the Judgment with no costs.

11. The said Judgment was read on the 28th May 2020 in the absence of the plaintiff/Applicant and its Advocates who did not have notice thereof. Thereafter, the Plaintiff/Applicant issued several e-mail communications to the Hon. Court in line with "the Corona Practice Guideline" as there was no physically access to the Hon. Court. The Court file was only found and the Judgment given to the Plaintiff/applicant on the 9th September 2020.

12. The Plaintiff/applicant is not satisfied with the Judgment aforesaid seeks that time for filing Notice of Appeal be enlarged.

APPLICANT’S CASE (DEFENDANT) 13. It was the Applicant’s submission that the its grounds of appeal are arguable and the appeal has high chances of success. An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.

14. The Applicant relied on the case of the case of Damii Praqji Mandavia v Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004 where the court found that it is sufficient if a single bona fide arguable ground of appeal is raised.

15. The Applicant shall at the hearing of this intended appeal prove that the Plaintiff/Respondent did not prove its case and that goods supplied to the Applicant herein were not for sale but they were a donation from a Third party and that the Third party who was to pay the Plaintiff for all the goods supplied.

16. Further, the Applicant herein is apprehensive that if this Application is not allowed, the Plaintiff/Respondent will proceed to sell the Defendant/Applicants movable property thereby rendering this application and the intended Appeal nugatory, further the Applicant stands to suffer substantial loss and damage if the Respondent proceeds to execute.

17. The Applicant submitted that it is willing to comply with such terms as the court may impose as to security, however taking into account the fact that the Plaintiff/Respondent was also dissatisfied with the judgment and also intends to appeal against the said judgment the Applicant submitted that this is one of the exceptional circumstances where the court grants an unconditional stay of execution. Thus, the Applicant prayed that the court grants an unconditional stay of execution.

18. On whether the Application was filed without unreasonable delay, the Applicant argued that the delay in filing the Application was occasioned by the fact that it was supplied with a copy of the judgment on 28th August, 2020 after having made numerous requests to be furnished with a copy to the Nairobi Commercial and Admiralty Division registry. The said judgment was necessary for the Advocates for the Defendant/Applicant herein to peruse the same and advise its client accordingly as well as to raise the grounds of appeal having being dissatisfied of the same.

19. The delay was not as a result of the Applicant’s indolence and that the Application was made without any unreasonable delay.

RESPONDENT’S CASE (PLAINTIFF) 20. The Respondent submitted that the applicant/Defendant could not settle the Judgment herein so much so that Plaintiff's instructed Auctioneers who attached movable items as per the proclamation within what is publicly known as the Defendant's premises; Unfortunately, the Auctioneer could not complete the attachment as it turned out that all the attached property did not belong to the defendant but to Catholic University of Eastern Africa.

21. The Respondent argued that the Applicant's Application was only filed when the Auctioneers were about to attach as thus it was made within unreasonable delay. Most importantly though, the Defendant has not shown any substantial loss that it would suffer if it paid the partially entered Judgement of Kshs.8, 545,163. 00 and Auctioneers charges of Kshs.1, 180,868. 58

22. The Respondent further submitted that it did business worth Kshs.33, 784,700. 00 (although Judgment was not awarded). It is well endowed financially and was capable of refunding the sums of Kshs.8, 545,163. 00 plus the Auctioneers charges, if the same is paid to it by the Applicant/Defendant.

ISSUES FOR DETERMINATION 23. The Court has considered both Applications, the Responses therewith and the written submissions by the respective parties and the following issues are for determination;a.Whether the court should grant to the defendant/applicant a stay of execution of the Judgment pending the hearing and determination of the appeal;b.Whether extension/enlargement of time for giving Notice of Appeal against the Judgment should be granted to the Plaintiff/Applicant;

ANALYSISWhether the court should grant to the defendant/applicant a stay of execution of the Judgment pending the hearing and determination of the appeal; 24. In an application for a stay of execution pending hearing and determination of the appeal, the Court of Appeal set out the guiding principles in the case ofButt –vs- Rent Restriction Tribunal [1979] eKLR (madam Miller and Porter JJA) who upon considering an Application of that Motion had the following to say: -“i) The power of the Court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.ii) The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.iii) A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion a better remedy may become available to the applicant at the end of the proceedings.iv) The Court in exercising its discretion whether to grant or refuse an application for say will consider the special circumstances of the case and its unique requirement.”

25. The applicable law for grant of stay of execution pending appeal is found under the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010 which provides;(2)No order for stay of execution shall be made under sub rule (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.

26. Basically, the Applicant is required to demonstrate that: Substantial loss may result unless the order is made; the Application has been made without unreasonable delay; such security as the court orders for the due performance of the decree has been given before the applicant.

27. On the issue of substantial loss, the defendant/Applicant was apprehensive that it would suffer financial loss if the Plaintiff/Respondent proceeded to sell the proclaimed movable property. The Applicant herein has not taken any step to demonstrate to the court how it will suffer substantial loss particularly in this instance where it is averred that the Applicant had no independent property of its own; that it operates within the confines of the Catholic University of East Africa which is the owner of the proclaimed property; having no independent property and no physical address the intended attachment thus stands frustrated.

28. It is trite law that while addressing the issue of irreparable loss in the Application for stay of execution, the court requires proof of prove specific details and particulars and it is not enough for the applicant to merely state that substantial loss will result; in the case ofMachira t/a Machira & Co. Advocates –vs- East African Standard(No. 2) [2002] 2 KLR 63, the Court held: -“In this kind of applications for stay, it is not enough for the applicant to merely state that substantial loss will result. He must prove specific details and particulars... where no pecuniary or tangible loss is shown to the satisfaction of the court, the court will not grant a stay...”

29. For these reasons the court finds that the Applicant has failed to demonstrate that it would indeed suffer substantial loss if the order sought was not granted.

30. Was the Application made without unreasonable delay; The impugned judgment was delivered on 28th May 2020 and the parties were supplied with a copy of the said judgment on 28th August 2020 having made numerous requests to be furnished with the same. The present Application was filed on 13th October 2020. The Applicant has not given any explanation as to why it waited for almost two months after receiving a copy of the judgment to file the instant Application for stay of execution. The court finds that there was unreasonable delay by the Applicant in filing the Application.

31. Security for the due performance of the decree – the Applicant urged the court to issue it with an unconditional stay of execution. In the case of Omar Shariff Abdalla versus Corporate Insurance Company Limited [2006] eKLR the court stated;“Let it suffice to refer to Falcon Bay Lodge (k) Ltd. v. Gurmuk Singh t/a Central Furniture Shop, Mombasa HCCA No. 69 of 1990, (unreported) in which Omolo J., as he then was, aptly summarized the point as follows: -“… there is no jurisdiction in this court to order unconditional stay of execution. The applicant is bound to provide security for such stay …”

32. Further, the Applicant stated in its Affidavit that is willing to comply with such terms as the court may impose as to security. In Congress Rental South Africa v Kenyatta International Convention Centre; Co-operative Bank of Kenya Limited & another (Garnishee) [2019] eKLR the court held;“The Applicant has been silent on the issue of security in this matter. The offer for a security should come from the applicant, it should not be inferred or implied or left for the Court to make an order for security for due performance as that would amount to stepping into the arena of dispute.”

33. In light of the above, the Defendant/Applicant is found to have failed to meet the requirements for the grant of an order for stay of execution.

Whether extension/enlargement of time for giving Notice of Appeal against the Judgment should be granted to the Plaintiff/applicant; 34. The court is guided by the provisions of the law on leave to file appeal out of time under Section 95 of the Civil Procedure Act states: -‘Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.’

35. This court has a wide and unfettered discretion to extend or enlarge time for filing an appeal. However, that discretion must be exercised judicially. In the case of Leo Sila Mutiso versus Rose Hellen Wangari cited with approval by the Court of Appeal in Thuita Mwangi versus Kenya Airways Ltd [2003] eKLR it was held: -“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.”

36. In the case of Mwangi v Kenya Airways Ltd (2018) eKLR the Court of Appeal held that the following factors should be considered by the court in exercising its discretion to grant leave to appeal out of time:They include the following:i.The period of delay;ii.The reason for the delay;iii.The arguability of the appeal;iv.The degree of prejudice which could be suffered by the Respondent if the extension is granted;v.The importance of compliance with time limits to the particular litigation or issue; andvi.The effect if any on the administration of justice or public interest if any is involved.

37. Length of delay and reasons thereof - The impugned judgment was delivered on 28th May 2020. The Plaintiff/Applicant explained the judgment was delivered without notice and that due to the Covid-19 Pandemic there was no physical access to the Court registry.

38. In addition to the above, the Plaintiff/Applicant was only able to peruse the judgment on 9th September 2020 and being dissatisfied with the judgment it instructed its advocates to file the instant appeal by seeking leave to do so; by which time the period within which to file a Notice of Appeal had lapsed. Thereafter, the Plaintiff/applicant filed the Application dated 16th September 2020.

39. The issue of disruption of Court operations by the COVID-19 pandemic were addressed in the following cases; MHCS v Nyambega (Civil Suit 42 of 2018) [2021] KEHC 87 (KLR) (Commercial and Tax) (23 September 2021)“The Applicant gave the disruption caused by the COVID-19 pandemic as one of the reasons why it failed to lodge its Notice of Appeal within the statutory time frame.The COVID-19 pandemic is unprecedented and it disrupted the court operations from March 2020 to the June 2020 as per the official documents availed by the Applicant. Therefore, there was scaling down of the Courts’ activities. The Ruling was delivered virtually online in March 2020 but the physical Court file and Ruling enclosed were released on 5th May 2020 to the Registry.In this case the Applicant argued that on 15th October 2020 it requested for a copy of the Ruling but did not explain the delay from June 2020 to the 15th October 2020 when the Courts’ activities had resumed and documents were being filed and matters were being conducted through virtual hearings.”

40. In Ruth Shikanda (Suing as Legal Repr. on behalf of the Estate of Agnes Ayori Ashiembi (DCD) v Sibed Transport Company Ltd [2020] eKLR“Therefore, whereas between 15th March 2020 to 8/6/2020 there was downscaling of court operations, it is clear and I take judicial notice of the fact that the courts never closed their registries and that is why the applicant had his bill of costs filed in court on 22/5/2020 and assessed before settlement of decree in full by the Respondent.”

41. It is reiterated that the courts never closed their registries and the applicant has not provided any evidence of written requests made or proof of the dates of the failed attempts to access the court registry. It is this court’s considered view that the Application for leave to enlarge time to appeal is made with inordinate delay and the delay is not satisfactorily explained to the court and it is found that there are no good or sufficient reason to grant the orders sought.Article 159 of the Constitution provides that justice shall be administered without undue delay. The Applicant has come to court after undue delay and the explanation is found to be unsatisfactory to the court.

FINDINGS AND DETERMINATION 42. For those reasons this court makes the following findings and determinations;(i)This court finds that the application dated 13/10/2020 for stay of execution of the Judgment and orders of the High Court Civil Suit No 36 of 2015 delivered by Hon. Justice Grace Nzioka on 28th May, 2020 is found lacking in merit and it is hereby dismissed;(ii)The application dated 16/09/2021 for enlargement/extension of time for giving Notice of Appeal against the Judgment of this Court, Hon Justice Nzioka is found not to be a suitable case for this court to exercise its discretion to extend/enlarge time; the application is found lacking in merit and it is hereby dismissed;(iii)Each party to bear their own costs of the respective applications.

Orders Accordingly.DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 25TH DAY OF MARCH, 2022. HON. A. MSHILAJUDGEIn the presence of;Onyango for the plaintiffNo appearance for the defendantLucy-------------------Court Assistant