Kang’ethe v Nkunga [2022] KEHC 12060 (KLR)

Kang’ethe v Nkunga (Miscellaneous Application E139 of 2021) [2022] KEHC 12060 (KLR) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12060 (KLR)

Republic of Kenya

In the High Court at Kiambu

Miscellaneous Application E139 of 2021

MM Kasango, J

June 16, 2022

Between

Michael Kamau Kang’ethe

Applicant

and

Silas Nkunga

Respondent

Ruling

1. Michael Kamau Kangethe (Michael) has presented this miscellaneous application seeking stay of execution of the consent order dated November 14, 2019. There is no indication in that prayer what court that consent was filed which is sought to be stayed.

2. The second prayer presented by Michael is for leave to file an appeal out of time. Yet again, there is no indication which judgment or ruling or order is sought to be stayed. Out rightly, it will be seen that the application in as far as the prayers are concerned is incompetent for lack of particularisation of the court action to which stay of execution is sought or leave to file an appeal out of time.

3. In the affidavit sworn by Michael’s advocate, it is stated that the respondent, Silas Nkunga (Silas) obtained ex parte judgment against Michael “in Civil Suit 1050 of 2016”. It will be noted again Michael does not state in which court the civil suit was filed.

4. The affidavit sworn on behalf of Michael reveals that Michael was arrested and imprisoned in the civil jail for non-payment of a debt. On November 14, 2019, he entered into a consent with Silas where he undertook to repay that debt. He applied before the Thika chief magistrate’s court to set aside the ex parte judgment. That prayer by a ruling of March 31, 2021 was dismissed. That being aggrieved of that dismissal, Michael applied for the proceedings and ruling. There is no evidence of such an application for proceedings or ruling. Michael then stated that the Thika magistrate’s court supplied him with certificate of delay certifying delay in provision of the proceedings. There is no such certificate provided to this court.

5. It follows that the delay to file the appeal was from March 31, 2021 to June 25, 2021 when this present application was filed. That period is more than the 30 days provided for under section 79G of the Civil Procedure Act, which provides:-“79G. 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.” (underlining mine)

6. That delay was not explained. Since it was inordinate delay and because of lack of explanation the application dated June 25, 2021 must and does fail.

7. It is dismissed with costs.

RULING DATED and DELIVERED at KIAMBU this 16th day of JUNE, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceFor 1st Applicant : - Mr. NjorogeFor Respondent:- Ms. KinyuaRULING delivered virtually.MARY KASANGOJUDGE