GITHINJI MACHARIA & GOLICHA G. OMAR V CONSOLATA AKOTH NYAKWARA [2011] KEHC 1891 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA

AT KITALE.

MISC. CIVIL CASE NO. 72 OF 2010.

GITHINJI MACHARIA  )

GOLICHA G. OMAR  ) ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS.

VERSUS

CONSOLATA AKOTH NYAKWARA ::::::::::::::::::::::::::::::::::::::::: RESPONDENT.

R U L I N G.

1. Misc. Civil Case No. 72 of 2010 and Misc. Civil Case No. 73 were consolidated at the hearing. In both files the applicants,Githinji Macharia and Golicha Omar, 1st and 2nd applicants respectively filed a Notice of Motion dated 9th December, 2010. The motion is brought under the provisions of order 50 rule 1, order 39 rule 5 and order 41 rule 4 of the Civil Procedure Rules and among other provisions of the law. The applicants are seeking for an order to enlarge time within which to file an appeal against the judgment of; Hon. P.N. Gichohi – Principal Magistrate that was delivered on 22nd October, 2008.

2. The applicants are also seeking for a temporary order of stay of execution of that judgment pending the hearing and determination of this application or in the alternative this court to order a stay of proceedings of Kitale CMCC No. 598 of 1998 pending the hearing and determination of this application. This application is supported by the grounds stipulated on the body thereto and the matters deposed to in the supporting affidavit sworn by Golicha G. Omar, the 2nd applicant herein.

3. Briefly summarized, the applicants are seeking for leave to enlarge time within which to file an appeal out of time and an order of stay of execution. According to counsel for the applicants, the intended appeal has chances of success because the applicants were held liable to pay general damages which were assessed at Ksh. 200,000/= and Ksh. 120,000/= respectively without any supportive evidence. Furthermore, when judgment was delivered, no notice was issued to the applicants and hence they did not know of the judgment until 24 months later.

4. This application was opposed; Counsel for the respondent relied on the grounds of opposition on points of law. It was submitted that the applicants were guilty of lashes, since judgment was delivered on 24th October 2008; they slept on their rights for over 30 months. Due to this inordinate delay that has not been explained, counsel urged the court not to grant the orders which are not supported by any evidence. The applicants did not attach a copy of judgment or proceedings. In this case it would be difficult for this court to know whether there is an arguable appeal.

5. This application seeks for enlargement of time within which the applicants can file an appeal.For reasons stated in the application and the supporting affidavit, I will grant the applicants leave to file an appeal out of time. This is because I see no prejudice that will be caused to the respondent by allowing the applicants leave to ventilate their grievances by way of an appeal. However, on the application for stay of execution, I am afraid this application does not meet the threshold of the provisions of order 42 (6) (2) of the CPR which provides:-

“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.”

6. I also find this application was slovenly drawn; the applicant did not attach a copy of the judgment, decree or even the proceedings. It is not possible for this court to appreciate or evaluate the decision.Lastly, the application seeks for an order of stay of execution pending the determination of this application which order is now overtaken by events. Accordingly; the applicant is granted leave to file an appeal within 14 days from this date. The prayer for stay of execution is not granted.Costs of this application are to the respondent.

Ruling read and signed this 8th day of July, 2011.

MARTHA KOOME.

JUDGE.