[2022] KEHC 16436 (KLR)

Wanaina v Nyoro & another (Miscellaneous Civil Application E082 of 2022) [2022] KEHC 16436 (KLR) (Civ) (8 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16436 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E082 of 2022

CW Meoli, J

December 8, 2022

Between

Peter Kimani Wanaina

Applicant

and

Samuel Waiganjo Nyoro

1st Respondent

Family Bank Limited

2nd Respondent

Ruling

1. The motion dated 16. 02. 2022 brought by Peter Kimani Wainaina (hereafter the Applicant) seeks leave to lodge an appeal out of time against the judgment in Nairobi Milimani CMCC No. E4990 of 2020 delivered in favour of Samuel Waiganjo Nyoro (hereafter the 1st Respondent), and an order to stay execution of the judgment and decree in Nairobi Milimani CMCC No. E4990 of 2020 pending hearing and determination of the intended appeal. The motion is expressed to be brought inter alia under section 3 & 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules.

2. The grounds on the face of the motion are amplified in the supporting affidavits sworn by Martha Mugo, counsel having conduct of the matter and the Applicant, respectively. The gist of counsel’s affidavit is that the 1st Respondent had already extracted warrants of attachment and that the execution process is irregular for reasons that the warrants of attachment and sale were not duly served upon the Applicant. She goes on to depose that if execution proceeds, it will cause irreparable harm and loss to the Applicant rendering the otherwise arguable intended appeal nugatory; that the motion has been lodged promptly without inordinate delay. She equally contends that the Applicant is apprehensive that if payment is made on the decree, the Applicant might be unable to recover it from the 1st Respondent as his financial means are unknown.

3. She further expresses the Applicant’s willingness to furnish security in the form of a bank guarantee. In conclusion counsel deposes that the motion has been made in good faith and that the 1st Respondent will not suffer any prejudice that cannot be compensated through costs.

4. The Applicant on his part deposes that he was neither served with a proclamation notice nor warrants of attachment and hence the attachment of his goods is irregular. That he is aggrieved by the lower court judgment and has instructed his counsel to lodge an appeal and he stands to suffer substantial loss if stay is denied.

5. The 1st Respondent opposes the motion through a replying affidavit dated 27. 03. 2022. He asserts that both the Applicant and his counsel have confirmed that they were aware of the judgment which was delivered on 23. 12. 2021 but have not offered any plausible explanation for failure to file an appeal on time; that no correspondence between the Applicant and counsel has been evinced to show when the alleged notification of delivery of judgment and subsequent instructions to lodge an appeal was communicated; that the Applicant was duly served with the proclamation notice on 02. 02. 2022 and only rushed to court when his motor vehicle was attached by auctioneers. He asserts that there is inordinate delay in bringing the instant motion.

6. In his view, the motion is solely intended to delay his enjoyment of the fruits of judgment; that the intended appeal does not raise any arguable grounds. He deposes that contrary to the Applicant’s assertion, he is well an able to repay the decretal sum in the unlikely event the intended appeal is successful therefore hence there is no justification for denying him the fruits of his judgment. He deposes in the alternative that in the event the court were to be inclined to allow the motion, the court should impose a condition for provision of security by the Applicant as well as an order that the Applicant settles the auctioneer’s and storage charges.

7. The motion was canvassed by way of written submissions. Counsel for the Applicants in urging the prayer for leave to file appeal out of time pegged her submissions on the provisions of Section 3A, 79G & 95 of the Civil Procedure Act and Order 50 Rule 5 of the Civil Procedure Rules. She also cited the decisions in Wachira Karani v Bildad Wachira [2016] eKLR, Patel v E.A Cargo Handling Services [1974] E.A 75, Bake n’ Bite (Nrb) Limited v Daniel Mutisya Mwalonzi [2015] eKLR and Esther Wamaitha Njihia & 2 Others v Safaricom Limited [2014] eKLR . She asserted that the Applicant has an arguable appeal and delay herein has been sufficiently explained in that counsel was obligated to first seek instructions from the Applicant which however were given after the period for lodging an appeal had lapsed. Hence, counsel contended that the Applicant had demonstrated good and sufficient cause and the court ought to exercise its discretion in favour of the Applicant.

8. Concerning the prayer seeking stay of execution pending appeal, counsel called to aid the decisions in Tarbo Transporters Ltd v Absalom Dova Lumbasi [2021] eKLR, Mukami v Abuoga [1988] KLR 65 and Edward Kama & Another v Hannha Gichiku & Another [2015] eKLR to assert that unless stay is granted the Applicant is likely to suffer substantial loss. Counsel reiterated affidavit material in this regard.

9. For his part, counsel for the 1st Respondent submitted that the Applicant had failed to give an explanation on the failure to lodge the appeal out of time. On this point he cited the decision in John Gakobo Macharia v The Kenya Power & Lighting Co. Ltd [2009] eKLR. He contended that the instant motion was prompted by the attachment of the Applicant’s motor vehicle rather than a genuine desire to lodge an appeal. Arguments were further raised to the effect that the appeal is not arguable and that the delay has not been adequately explained.

10. Regarding the prayer for stay of execution pending hearing of the intended appeal, counsel anchored his submissions on the decision in Equity Bank Limited v Taiga Adams Co. Ltd [2006] eKLR to argue that in order to succeed, the Applicant must satisfy all requirements in Order 42 Rule 6 of the Civil Procedure Rules. Citing the decision in Godfrey Wainaina Kinyanjui & Anor v Joseph Mwikya Musaa [2020] eKLR counsel stated that the Applicant had not rebutted the assertions of the 1st Respondent on his ability to refund the decretal sum. Thus, he contended the Applicant will not suffer any substantial loss. On security, he argued that the interests of both parties ought to be balanced through an order requiring the Applicant to deposit the entire decretal sum in court pending determination of the intended appeal. The decision in Arum C. Sharma v Ashana Raikundala t/a A. Raikundalia & Co. Advocates & 2 Others [2014] eKLR was cited in that regard. The court was urged to dismiss the motion .

11. The 2nd Respondent did not participate in the instant proceedings.

12. The Court has considered the rival affidavit material and submissions made in respect of the motion. It is evident on a plain reading of Order 42 Rule 6(1) of the CPR that an order to stay execution pending appeal presupposes the existence of an appeal and the filing of an appeal is a condition precedent to the exercise of this court’s appellate jurisdiction under Order 42 Rule 6 (1) of the Civil Procedure Rules. Although the provision does not expressly say so, this can be inferred from the rule. Further, an analogy can be drawn from Order 42 Rule 6 (4) of the Civil Procedure Rules that states that an appeal is deemed filed in the Court of Appeal when the notice of appeal has been given.

13. Equally, Order 42 Rule 6 (6) of the Civil Procedure Rules states:“Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.” (Emphasis added).

14. It would seem therefore that the invocation of the jurisdiction of this court under Order 42 Rule 6 (1) or 6 (6) of the Civil Procedure Rules must be preceded by the filing of an appeal, or compliance with the procedure for filing an appeal, in this case a memorandum of appeal (See Order 42 Rule 1 of the Civil Procedure Rules). Until the memorandum of appeal is filed, the court may be acting in vacuo by considering the Applicants’ prayer for stay of execution pending a non-existent appeal. The Court of Appeal in Abubaker Mohamed Al-Amin v Firdaus Siwa Somo [2018] eKLR while citing with approval the decision of the High Court in Rosalindi Wanjiku Macharia v James Kiingati Kimani (Suing as the Legal Representative of the Estate of Martin Muiruri (Deceased) [2017] eKLR approved the foregoing reasoning.

15. Earlier, the same court in the case of Equity Bank v Westlink MBO Limited [2013] eKLR while commenting on Rule 5 (2) (b) of the Court of Appeal Rules, whose wording is substantially similar to Order 42 Rule 6 (1) of the Civil Procedure Rules, and on Order 42 Rule 6 (6) of Civil Procedure Rules, left no room for doubt that an application for stay of execution pending appeal could only be entertained before it after the filing of an appeal or a Notice of Intended Appeal. (See also Balozi Housing Co-operative Society Limited v Captain Francis E. K. Hinga [2012] eKLR).

16. Evidently, an appeal is yet to be filed herein and there is therefore no basis upon which this court could exercise its appellate jurisdiction as sought by the Applicant. If the Applicant desired to seek an order to stay execution alongside the prayer for the late admission of their appeal, they ought to have filed the memorandum of appeal in a proper appeal and the relevant application. In my considered view, the words that “an appeal may be admitted out of time” in Section 79G, appear to admit both retrospective and prospective applications. So that leave under the section may be sought before or after a memorandum of appeal is filed.

17. However, it may be more prudent for a party who also seeks stay of execution in the same motion for leave to appeal out of time to have filed the memorandum of appeal in advance. Consequently, the prayer seeking stay of execution of the judgment and decree in Nairobi Milimani CMCC No. E4990 of 2020 pending hearing and determination of the intended appeal has no legal anchor and cannot succeed.

18. Turning now to the prayer seeking leave to appeal out of time, the power of the Court to enlarge time for filing an appeal out of time is expressly donated by Section 79G, as well as generally, by Section 95 of the Civil Procedure Act. The deponents of the affidavits in support of the motion do not expressly state the reason for delay in filing the appeal but attempted to correct the omission through submissions. It appears from the supporting affidavits that the Applicant and his counsel were aware of the judgment delivered on 23. 12. 2021.

19. 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.”

20. As earlier noted herein the words that “an appeal may be admitted out of time” in Section 79G, appear to admit both retrospective and prospective applications. So that leave under the section may be sought before or after a memorandum of appeal is filed. Further the principles governing leave to appeal out of time are settled. The successful applicant must demonstrate “good and sufficient cause” for not filing the appeal in time.

21. In Thuita Mwangi v Kenya Airways [2003] eKLR, the Court of Appeal while considering Rule 4 of the Court of Appeal Rules then in pari materia with Section 79G of the Civil Procedure Act, reiterated its decision in Mutiso v Mwangi [1997] KLR 630 as follows:“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 general the matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of delay; secondly, the reason for the delay; thirdly (possibly) the chances of appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the Respondent of the application is granted.”

22. While the discretion of the court is unfettered, a successful applicant is obligated to adduce material upon which the court should exercise its discretion, or in other words, the factual basis for the exercise of the court’s discretion in his favor. On the question of the exercise of judicial discretion, the Supreme Court observed in the case of Telkom Kenya Limited v John Ochanda And 996 Others [2015] eKLR that:-“In instances where there is delay in filing the notice of appeal, this Court has inherent jurisdiction to admit such appeal, provided sufficient explanation is proffered for the cause of delay. The design and objective of the Supreme Court Rules is to ensure accessibility, fairness and efficiency in relation to this Court. Parties should comply with the procedure, rather than look to the Court’s discretion in curing the pleadings before it. This Court’s position is that the circumstances of each case are to be evaluated, as a basis for arriving at a decision to intervene, in instances where full compliance with procedure has not taken place….It is this Court’s position of principle that prescriptions of procedure and form should not trump the primary object of dispensing substantive justice to the parties. However, the Court will consider the relevant circumstances surrounding a particular case and will conscientiously ascertain the best course. It is to be borne in mind that rules of procedure are not irrelevant but are the handmaiden of justice that facilitate the right of access to justice in the terms of Article 48 of the Constitution….”See also Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 Others [2019] eKLR.

23. The Supreme Court in the case of Nicholas Kiptoo Korir Arap Salat v IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The Court stated inter alia that:“(T)he underlying principles a court should consider in exercise of such discretion include;1. Extension of time is not a right of any 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 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 Respondent if the extension is granted;6. Whether the application has been brought without undue delay.7. ......”See also County Executive of Kisumu v County Government of Kisumu & 8 Others [2017] eKLR.

24. It is not disputed that the judgment of the lower court was delivered on 23. 12. 2021. Despite the failure by the Applicant to give a satisfactory explanation for delay in bringing the motion, the court is alive to the fact that since judgment was delivered on 23. 12. 2021, the provisions of Order 50 Rule 4 of the Civil Procedure Rules apply in the computation of time when the intended appeal ought to have been filed by the Applicant.

25. Order 50 Rule 4 provides that: -“Except where otherwise directed by a judge for reasons to be recorded in writing, the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included, shall be omitted from any computation of time (whether under these Rules or any order of the court) for the amending, delivering or filing of any pleading or the doing of any other act:Provided that this rule shall not apply to any application in respect of a temporary injunction.”

26. As such, the Applicant ought to have filed the appeal on or before the 13. 02. 2022. The instant motion was filed on 17. 02. 2022, some four days after the lapse of the appeal window. The 1st Respondent’s argument that the motion was filed 53 days after delivery of the impugned judgment does not consider the provisions of Order 50 Rule 4. Be that as it may, it is trite that delay, no matter the duration ought to be sufficiently explained.

27. It is surprising that both the Applicant and his counsel eschewed stating in their respective affidavit material the date when the Applicant was informed of the judgment and when instructions to appeal were issued. This was an important issue to which both counsel and the Applicant ought to have deposed expressly, as the period of delay as well as explanation thereof is a key consideration in an application of this nature. A party seeking extension of time must not be seen to presume on the Court’s discretion.

28. The Court of Appeal stated in Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 Others [2019] eKLR that: -“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be explained hence a plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There have to be valid and clear reasons, upon which discretion can be favourably exercisable…”

29. The Applicant has asserted that the intended appeal is highly merited and a review of the draft memorandum of appeal attached to the Applicant affidavit material appears to raise issues serious enough to require the court’s consideration on appeal, or that are prima facie arguable. The Court of Appeal in Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited (2020) eKLR stated that: -“…an arguable appeal need not succeed so long as it raises a bona fide issue for determination by the Court.”

30. In Vishva’s case, the Court emphasized the right of appeal in the following terms:“Turning to the request to allow the applicant to exercise his now undoubted constitutionally underpinned right of appeal, the position is…. crystalized …. in the case of Richard Ncharpi Leiyagu v IEBC & 2 Others (supra); Mbaki & Others v Macharia & Another [2005] 2EA 206; and the Tanzanian case of Abbas Sherally & Another v Abdul Fazaiboy, Civil Application No. 33 of 2003; for the holding inter alia that:(i)the right to a hearing is not only constitutionally entrenched but it is also the corner stone of the Rule of law;(ii)the right to be heard is a valued right; and(iii)that the right of a party to be heard before adverse action or decision is taken against such a party is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of natural justice…”

31. Notwithstanding the Applicant’s failure to offer satisfactory explanation, the delay herein is not inordinate. Moreover, this court is of the view that any prejudice likely to be visited upon the 1st Respondent by the granting of the motion can be compensated through costs. In the circumstances, to facilitate the Applicant’s undisputed right of appeal, the court will allow the motion with costs to the 1st Respondent in any event. The appeal is to be filed within 14 days and the court will order that during that period, the status quo in respect of the attached goods be maintained.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 8TH DAY OF DECEMBER 2022. C.MEOLIJUDGEIn the presence of:For the Applicant: Ms.Gulenywa h/b for Mr. MugoFor the 1st Respondent: Mr. KibikuC/A: Adika