[2023] KEHC 26450 (KLR)

Waweru & another v Chege (Miscellaneous Civil Application E081 of 2023) [2023] KEHC 26450 (KLR) (Civ) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26450 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Application E081 of 2023

CW Meoli, J

December 8, 2023

Between

Simon Waweru

1st Applicant

Mary Wanjira Guchu

2nd Applicant

and

Joseph Mwangi Chege

Respondent

Ruling

1. For determination is the Notice of Motion dated 20th February, 2023 (hereafter the Motion) brought by Simon Waweru and Mary Wanjira Guchu (hereafter the 1st and 2nd Applicants/ the Applicants) seeking leave to file an appeal out of time from the judgment delivered in favour of Joseph Mwangi Chege (hereafter the Respondent) by the lower court on 19th December, 2022 in Milimani CMCC No. 8643 of 2017 and further, an order to stay execution of the said judgment, pending the hearing and determination of the appeal. The Motion is expressed to be brought under Sections 3, 3A & 95 of the Civil Procedure Act (CPA) and Order 22, Rule 22; Order 42, Rules 4 & 6; and Order 51, Rules 1 and 3 of the Civil Procedure Rules (CPR).

2. The grounds on the face of the Motion are amplified in the supporting affidavit sworn by Martha Mugo, the Applicants’ advocate, who averred that following delivery of the judgment, efforts were made to contact the Applicants with a view of briefing them on the outcome but to no avail, the Applicants having changed their addresses and locations. The advocate further averred that the decision to lodge an appeal was further delayed by the festive season which followed the judgment. That the advocate eventually reached the Applicants, who being aggrieved by the judgment, gave instructions for the filing of an appeal, by which time the timelines for filing an appeal had lapsed.

3. Counsel deposed that the intended appeal will be rendered nugatory if stay of execution is denied because the Respondent’s ability to refund the decretal sum if the intended appeal succeeds, is doubtful, his means being unknown. She further stated that the Applicants are ready and willing to provide a bank guarantee as security for the due performance of the decree. The court was urged to allow the Motion.

4. The Respondent opposed the Motion through a replying affidavit sworn on 13th April, 2023. Therein, he deposed that the Motion is a delaying tactic intended to frustrate the execution process; that the explanation given for the delay in lodging the appeal in time is unsupported by material evidence and; that there is no arguable appeal demonstrated. The Respondent therefore urged the court to dismiss the Motion with costs.

5. The Motion was to be canvassed by way of written submissions. However, at the time of writing this ruling, the Applicants’ submissions were not on record despite the orders made on 15th June, 2023 directing them to file their submissions by close of business on the said date. Submissions were filed on behalf of the Respondent.

6. The Respondent resisted the Motion. In brief submissions dated 2nd June, 2023 counsel for the Respondent echoed the averments made in the replying affidavit and urged the court to dismiss the Motion on various grounds the most pertinent being that the appeal has no prospects of success, here citing Amir A. Boy v Land Adjudication Director & District Land Registrar [1995] eKLR.

7. The Court has considered the rival affidavit material and submissions on record. The first prayer seeks 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 of the CPA, as well as Section 95 of the same Act. Section 79G 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.”

8. The principles governing leave to appeal out of time are settled. A successful applicant must demonstrate “good and sufficient cause” for not filing the appeal in time. In Thuita Mwangi v Kenya Airways [2003] eKLR, the Court of Appeal while considering Rule 4 of the Court of Appeal Rules which was 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.”

9. 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….”See also Patrick Wanyonyi Khaemba v Teachers Service Commission & 2 Others [2019] eKLR.

10. 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.

11. On the length of delay, the copy of the impugned judgment annexed to the affidavit supporting the Motion shows that the said judgment was delivered on 19th December, 2022 and the instant Motion filed on or about the 20th February, 2023. In the court’s view, discounting the period in Order 50 Rule 4 of the CPR when time does not run, the delay is about a month, and therefore not inordinate.

12. The explanation given is difficulty encountered by counsel in contacting the Applicants and the onset of the festive season. While no evidence of the attempts made was furnished, the court views the explanation as reasonable.

13. On the substance of the intended appeal, the memorandum of appeal discloses a reasonable challenge to the trial court’s apportionment of liability as well as its assessment of damages. All that is required is a demonstration that the appeal is worthy of consideration by the court, and not necessarily that it will succeed. Further, based on the language employed in Mutiso v Mwangi (supra) the requirement touching on the viability of the intended appeal, is neither mandatory nor stringently applied in an application of this nature. The Court of Appeal in Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited (2020) eKLR stated that such appeal:“… may not succeed as in law an arguable appeal need not succeed so long as it raises a bona fide issue for determination by the Court.”

14. 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 vs. IEBC & 2 Others (supra); Mbaki & Others vs. Macharia & Another [2005] 2EA 206; and the Tanzanian case of Abbas Sherally & Another vs. 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;”

15. The Applicants ought to be given a chance to exercise their right of appeal and in the Court’s view, the Respondent has not shown that he stands to suffer such grave prejudice that an award of costs would not be adequate compensation. In the circumstances of this case, the court is persuaded to exercise its discretion in favour of the Applicants and to grant the prayer for leave to appeal out of time.

16. Now turning to the prayer seeking a stay of execution, the courts have discretionary power to grant stay of execution of a decree or order pending appeal. The discretion ought to be exercised judicially, however. See Butt v Rent Restriction Tribunal (supra). This power is donated by Order 42, Rule 6 of the CPR which stipulates that:“(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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”.

17. It is evident on a plain reading of Order 42 Rule 6(1) of the CPR, that an order to stay execution pending hearing and determination of an appeal presupposes the existence of an appeal. 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.

18. Hence 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). Thus, where a party specifically seeks stay of execution pending hearing and determination of an appeal not yet filed, the court may be acting in vacuo by considering the Applicant’s prayer for stay of execution pending a non-existent appeal.

19. 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 vs. James Kiingati Kimani (Suing as the Legal Representative of the Estate of Martin Muiruri (Deceased)) [2017] eKLR approved the reasoning that a prayer for stay of execution pending appeal must be predicated on an existing appeal.

20. Earlier, the Court of Appeal in the case of Equity Bank -Vs- 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 -Vs- Captain Francis E. K. Hinga [2012] eKLR). An appeal is yet to be filed here and there is no basis upon which this court could exercise its appellate jurisdiction under the said provision in a miscellaneous matter.

21. If the Applicants desired to seek an order to stay execution alongside the prayer for the late admission of their appeal, they ought to have first 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, appears 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. 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.

22. In the circumstances, the prayer seeking to stay execution of the judgment in Nairobi CMCC No. 8643 of 2017 pending hearing and determination of the intended appeal has no legal anchor and cannot be entertained.

23. In the result, the court hereby grants leave to the Applicants to file an appeal within 14 days of today’s date and will also issue a temporary order to maintain the status quo during that period, the Applicants having complied with the condition attached to the interim order of 20. 02. 2023, requiring them to deposit Kshs. 1000,000/- as security. The costs of the motion are awarded to the Respondent in any event.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 8TH DAY OF DECEMBER 2023. C.MEOLIJUDGEIn the presence ofFor the Applicants: N/AFor the Respondent: N/AC/A: Emily