Lawi Nyateng v Arnold William Omulando [2015] KEHC 2473 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  28   OF 2015

LAWI NYATENG……………………………..APPELLANT

VERSUS

ARNOLD WILLIAM OMULANDO……….  RESPONDENT

RULING

By notice of Motion dated 27th January 2015 filed in court on the 28th day of January 2015, the applicant LAWI NYATENG seeks from this court orders:

Spent

Spent

That pending the hearing and determination of the appeal herein, there be stay of execution of the lower court’s judgment issued in CMCC 2284/2009 on 10th November, 2014.

That leave be granted to the appellant to file the appeal out of time and the appeal filed herein be deemed as duly filed.

That costs be in the cause.

The application is predicated on the grounds:

The appellant’s goods were proclaimed on 23rd January 2015 and may be carted away on lapse of 7 days.

The appellant /his advocate was never notified of the judgment date of 10th November 2014.

The appellant has an appeal with overwhelming chances of success in that the alleged agreement of sale of land was not in writing.

It is in the interest of justice that the appeal (sic) be allowed.

The said application is supported by the affidavit sworn by the applicant Lawi Nyateng sworn on 27th January 2015 and some annextures.

In the supporting affidavit, the applicant  deposes that he was the defendant  in CMCC 2284/2009 and that  after the  suit  was heard, and his testimony taken, he was  notified  by his advocate  M/S M.A Abong’o & co. Advocates that  judgment would be delivered on notice but that he never heard  from his said advocates until 23rd January 2015  when he was called by his son to the  effect that there were auctioneers  in his house  in Nairobi.  When he travelled  to Nairobi  he found that M/S Moran  Auctioneers  had proclaimed  his household  goods  and motor vehicle  registration  No.  KAA 486V allegedly for kshs 395,218 as shown by an annexed copy LN1.

The applicant deposes that he then immediately contacted  his advocates  who informed him that they  were never  notified of the said judgment  date upon which  he proceeded  to court and requested  for handwritten copy of judgment annexed hereto as LN2, which  shows that it  was delivered  in the absence  of parties advocates  and also deposes  that his  advocate  was never served  with ten days  notice  confirming the entry of  judgment.

Further, it is deposed that the intended  appeal  has overwhelming  chances of  success in that there  was no evidence  of a sale  of land agreement  in  writing; there was no evidence to prove  payment  of purchase price of  kshs 160,000 and the trial magistrate never appreciated  the fact that the applicant  was not and had never been the owner of the suit land.

The applicant  therefore contends  that if stay is not granted, he stands to  suffer irreparable  loss  as the respondent’s  monetary status is not known and that the  respondent  only produced  receipts  for 4,700/- being  registration fees to Kwa Ndege  Self  Help Group and not kshs 80,000/- as alleged.  Further, that he should  be  allowed to file his appeal out of  time as  his advocates  did not know  when the judgment  was delivered  hence  the delay which is not  unreasonable.  The applicant also deposes that he is not employed hence he cannot raise the decretal sum of kshs 395,218. 000 and that it is in the interest of justice that the application be allowed.

The respondent opposed the application and filed a replying affidavit sworn by himself Arnold William Omulando on 4th February 2015. The respondent contends that the application is incompetent, factually defective, unsustainable, smacks the malice and the applicant’s second attempt   at wasting precious judicial time.  The respondent deposes  that after the  case in the lower court wherein he  was the plaintiff was heard, the matter was mentioned on 10th June  2014 wherein the court directed that  judgment  would be delivered on 11th  July 2014  and the respondent’s advocates  were also directed  to serve  a notice  on the applicant ‘s advocates  as the latter  had failed  to attend court, as shown  by annexture AWO1 copy of judgment notice received by the  applicant’s advocates on 13th June 2014  for 11th July 2014.

The respondent  also deposes  that  when his  counsel attended court  on 10th July 2014, the judgment  was not ready hence it  was set  for 10th November 2014 as shown by annexture AWO2  copy  of judgment  notice from court and copied  to the applicant’s advocates then on record.

The respondent   deposes  that he accordingly attended  court on 10th November 2014 as his advocate  was  indisposed  wherein judgment  was delivered  as scheduled  after the  court noted  that both  parties advocates  had been served.  The respondent also deposes  that the  applicant’s  affidavit at paragraphs  4  and 14  are contradictory  and that  judgment was never  delivered exparte  since  the parties  were notified  of the  judgment.

The respondent further deposes that he proved his case in the subordinate court to the required standard.  The respondent  contends that the 77 days  delay is inordinate  and the intended appeal is hopeless  and that  there  will be great prejudice  accessioned  to the respondent  if the  orders sought are granted.

Further, it is  deposed  that no  stay  of execution  can be granted  if the  applicant  does not  deposit  the decretal sum in court.  He urged the court to dismiss the applicant’s application with costs.

The parties advocates agreed to dispose of the application by way of written submission.  The applicant  filed his on 16th March 2015  whereas  the  respondent  file his  on 20th May 2015 .

This court is therefore called upon to determine the application as filed and urged by the parties.  In their written  submissions, the  applicant  reiterates  what  is contained  in his submission, the affidavit  and grounds in support thereof  together  with the annextures.

On the applicable law, It is submitted on behalf of the applicant that the application is grounded on order 42 Rule 6 and other grounds which case law has added.  In his view, the application for stay can be granted in the discretion of the court.  He relied  on the case of Butt  vs Rent Restriction Tribunal Madan, Miller & Porter, JJ.A cited in Julius Gatete Ihomba v Wells Fargo Ltd  (2013) e KLR that :

The power of the court to grant or refuse an application for stay of execution is a discretionary power.  This discretion should be exercised in such a way as not to prevent an appeal being rendered nugatory.

The general principle  in granting  or refusing  a stay us; is there  is no  other overwhelming hindrance, a stay  must be  granted  that an appeal  may not be rendered nugatory should that appeal court reverse  the judge’s discretion.

A judge should not refuse stay if there are good grounds for granting it merely may become available to the applicant at the end of the proceedings.

The court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and unique requirements.

The applicant also relied  on Kenya Power and Lighting Company Ltd vs  Esther Wanjiku Wokabi (2014) e KLR  which emphasize  that the conditions set out  in Order 42 Rule 6(2) of the Civil Procedure Rule are guidelines for the court to use  as beacons  in exercising  its unfettered  discretion in deciding whether  or not to  grant stay, depending on the circumstances of each case.

The applicant also cited Global  Tours  & Travels Ltd winding up cause  43/2000 Ringera J citing Kenya Power and Lighting Company vs  Esther Wanjiku (supra), that whether  or not  to grant stay is  a matter  of judicial discretion to be exercised  in the interest of justice  and if so  on what terms, considering the  pros and cons, the need for expeditions  disposal of cases, the prima facie  merits  of the intended  appeal- not necessarily  one that  must succeed  but whether  its an arguable one, the scarcity and optimum utilization of judicial  time and whether  the application has been brought expeditiously.

The applicant  also relied on the  Supreme Court decision in Gatirau  Peter Munya v Dickson Mwenda  Kithinji  & Others  SC App 5/2014  where the SC  set out 2 principles  applicable  in application for stay thus:

The appeal or intended  appeal is arguable  and not frivolous  and

Unless the order of stay is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory.

Further  reliance  was made  on the case  of Chris Munga N Bichange v Richard Nyagaka Tongi & 2 Others  Kisumu Capp 39/2013 where it  was stated  that in law, one arguable  point  suffices  for the finding that the appeal  filed or intended  appeal is arguable.  The applicant’s counsel then laid out 4 principles flowing from the decisions he had cited, as guiding this court on the application for granting of stay of execution pending appeal.

Whether the application before court was made expeditiously.

Whether the applicant’s appeal or intended appeal is arguable and not frivolous.

Whether the applicant is likely to suffer substantial loss unless the orders sought for stay of execution are granted.

Whether  the intended appeal shall be rendered  nugatory  unless the orders  of stay of execution are granted  or whether  the application  was made  without  unreasonable  delay,

It was submitted on behalf of the applicant that the  applicant  filed this  application immediately  after learning  of judgment  as delivered on     4th November 2014 and that he had not  been notified  of the date  of judgment  hence he filed  Notice of  Appeal dated 27th January 2015 and Memorandum of Appeal dated 28th January 2015.

On whether  the applicant is likely to suffer substantial harm if orders sought  are not granted, the applicant  submits  that he is a private citizen with a  good standing  in society  who had  not been informed by his previous  advocates of the events  transpiring  in this  case.  He relied  on the decision of Caltex Ltd v Kenya Airports  Authority (2005) e KLR and Pithon Waweru  Maina v Thuka Mugiria (1982-1988) 1KAR 171 that he  should not  be punished  for his advocate’s mistake  unless an injustice would be  occasioned  to the other party, urging  the court  not to allow mistakes  of his former  advocate  to be visited  on him.

The applicant also maintained that his appeal is arguable and not frivolous as the purported agreement   was not in writing yet it involved a disposition in land.  He relied  on Section 3(3) of the Law of Contract  Act  and the case  of Hanington Malingi  Janji v Katana Pekeshe & 7 Others (2013) e KRL ; Patrick Tarsan Matu & Another v Nassim Shariff Nassir Abdulla & 2 Others (2009) e KRL and Margaret  Karema v James  Muthuri M’Mungania  (2011) e KLR.

The applicant also submitted  that the applicant had not proved in the lower court  that the respondent   had paid  any money to the applicant hence the special damages claimed  was not proved.

On whether  the intended appeal  will be rendered nugatory if stay is not granted, the applicant  contended  that indeed the  appeal  shall be  rendered nugatory because  of errors  of omissions  by the court below  and his advocates and that he will suffer grievous injustice  pecuniary loss, mental  anguish and distress.

In opposition, the respondent submits that the application by the applicant is merely intended to scuttle execution as the applicant’s advocates were duly served with judgment notice as annexed to the replying affidavit.  the respondent maintained  that the applicant  does   not  deserve  leave to file an appeal  out of time  as the application had been brought with undue  delay and no reasons  have been advanced for  the delay.

Further, that he would be prejudiced if the orders sought are granted.  In addition, it is submitted that the intended appeal has no chances of success.  He relied on the cases of Leo Sila  Mutiso v Rose Hellen  Wangari Mwangi, CA Nairobi  255/97 VR cited in Niazsons  (K) Limited v China Road and Bridge Corporation (K) (200) e KLR .

The respondent submitted that the reason for the delay is not genuine as the appellant actively participated in the suit and therefore cannot hide behind his advocate’s mistake yet there was a notice served on all parties for the date of judgment.

On stay pending the intended appeal, it is submitted by the respondent that the applicant   had not satisfied the conditions for granting of such orders as stipulated under Order 42 Rule 6(2) of the Civil Procedure Rules.  He relied on Osero & co. Advocates v Easy Properties Ltd (2014) e KLR and Jason Ngumba Kagu v Inatra Africa Insurance Co. Ltd (2014) e KLR.The respondent contendS that the application was filed after 3 months from date of judgment hence there was delay.

Secondly, that no substantial  loss would be suffered by the applicant  if stay  is not granted  as it is a money decree and  that the  respondent is not a pauper  hence if  paid the money he  would be in a position to reimburse  the same, further, that the  applicant cannot purport to be  unable to pay the decretal sum  yet he chose to be litigant  and therefore  if he cannot  deposit security for due performance of decree, the discretion of this court should not be exercised in his favour .

I have carefully considered the applicant’s application, the affidavit evidence and submissions by both parties hereto.  In my view, there are only two issues for determination namely:

Whether the applicant is entitled to grant o extension of the period within which he should have filed his appeal.

Whether the applicant is entitled to the orders of stay of execution of decree pending appeal.

On issue   No. 1 the law applicable  for application  for leave to appeal out of  the statutory  period is  Section 79G of the Civil Procedure  Act which stipulates that an appeal from the subordinate  court to the High Court shall be lodged  within 30 days  from the date of the decision  with  a proviso  for extension of such period.  The relevant provision states:

“ Every appeal from a subordinate  court to the High court  shall be filed within a period of thirty days  from the date  of 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.”

Under the proviso, an appeal may be admitted out of time of the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

The Supreme Court  in the case of Nicholas  Kiptoo arap Korir  Salat v IEBC & 7 Others SC APP. 16 of 2014  laid down about 7 principles  that a court should consider in the exercise  of its discretion to extend time:-

It is not a right of a party.  It is an  equitable remedy that  is only available  to a deserving party at the discretion of the court;

A party who seeks for extension of time has  the burden of laying  a basis  to the satisfaction of the court;

In the exercise of the discretion to extend time the court should consider case to case basis.

A reasonable reason for  the delay should  be offered to the satisfaction of the court;

Whether there will be any prejudice suffered by the responders if the extension is granted.

If the application has been brought without undue delay.

In certain cases, like election petitions, public interest should be considered for extending time.

The question is, has the applicant shown good and sufficient cause for not filing the appeal in time?

The applicant contends that his advocate and himself  were not  present when  judgment  was delivered  and that they did not  receive  any notice of judgment.

The respondent on the other hand  maintains that the applicants were aware  of the judgment date as  they had been notified.

I have  examined  the handwritten  copy of the judgment  delivered on 10th November 2014 and it shows that the judgment  was delivered  in the absence  of  parties and  the court noted ”despite  notice on    31st November 2014. ”

The respondent  annexed copy of judgment notice dated 6th June 2014  served  on the applicant’s  former advocates M/A Abongo & Co  Advocates on 13th June 2014 notifying them  that judgment  would be  delivered  on 11th July 2014  at 2. 30 pm .  He also annexed another  notice from court dated  3rd November 2014  addressed  to both parties  advocates indicating that  the judgment would  be delivered  on 10th November 2014 at 2. 30pm

Regrettably, there is no evidence  to show that notice of  judgment  date  by the court  was served  upon the applicant’s  advocates.  The process server  of the court  received it on 4th November 2014 and effected  service upon the respondent’s advocates on 4th November 2014  but there is no corresponding evidence that the  applicant’s advocates were served.  Therefore, albeit the trial magistrate delivered judgment  on 10th November 2014  believing that both parties advocates had been notified, what is  reflected is that there  was no service  and if there  was such service upon the  applicant’s, nothing prevented the  respondent  from annexing a copy of notice duly served and or  received by the applicant’s  advocates.  It was, in my view, therefore, trite  that the applicant  was not aware  of the  judgment date, the same having  aborted on 11th July 2014  as per  the earlier notice.

Based on the above  factual  finding, I am inclined to find that  there was sufficient  cause for  the applicant not to file an appeal within the 30 days  statutory period.

Furthermore,  the right of appeal is a Constitutional right  and must be respected.  No party  should be barred from ventilating their grievances exhaustively as such denial would  undoubtedly deny them access to justice.

I also find that the intended appeal is arguable   and as  has been held severally, an  arguable  appeal is not necessarily  one that must succeed.(See Dennis  Mogambi Mongare V Attorney General & 3 Others CA 265/2011).  The applicant contends that the trial magistrate failed to take  into account the provisions of Section 3(3) of the Contract Act that  an agreement  respecting an interest in land must be in writing   and witnessed.  It is  not for this court to attempt  to delve  into the merits of the intended appeal  as that  would prejudice  the parties  and embarrass the trial court but what is trite is that  the above contention alone  rises a triable  issue between the parties.

Accordingly, I am satisfied that  albeit this application was filed  on 28th January 2015  about 2 ½ months from 10th November, 2014 when judgment was delivered in the lower court, the delay has been explained  and is not inordinate.

I must mention that there was no necessity  for server  of  10 days  notice of entry if judgment  as the suit had proceeded to  hearing interpartes.

In the end, I grant the  applicant extension of time within  which to file  an appeal  against judgment and decree  made on 10th November 2014  by the trial  court in CMCC 2284/2009 and direct that such Memorandum  of Appeal  shall be filed   and serve within 21 days  from the date  hereof in default, leave granted lapses.

On the second issue of whether  the applicant has satisfied  the court on the  conditions for stay pending appeal, the 1st  condition, in my view, has been complied with.  There is no  contrary evidence that judgment  was delivered on 10th November 2014 and that  the applicant only learnt of the same on 23rd January 2015  when he was alerted  by his son that auctioneers were in the process of attaching his goods upon  which he  contacted  his former  counsels on record  who informed  him that they  had not been served  with a judgment notice.  The application for leave  and stay with a draft  Memorandum of Appeal were simultaneously filed on 28th January 2015.

In my view, there was no delay in filing the application from date of  discovery of judgment .  Time begins  to run from the date of delivery of judgment  yes but in special  circumstances where a party  was not made  aware of such  judgment, they cannot  be blamed  for the delay when the  application was timeously  filed  upon discovery of the said judgment.

On whether  the applicant shall  suffer substantial loss if stay is declined and that should  the  appeal succeed, it will be rendered  nugatory, the applicant  states that  he  has an arguable  appeal with overwhelming chances of success  and that the  monetary  status  of the  respondent  is unknown and that he would loose his household goods.

The claim is  monetary and it has not  been demonstrated  that  there will be any loss leave alone substantial loss to be  suffered  if the money is paid out  and the appeal succeeds  then it will be rendered  nugatory.  In addition, there  has not been any evidence adduced to prove the  impecunuity of the respondent  such that should  the money be  released to him and the  appeal succeeds, then he  shall not be in a position to refund  the same; notwithstanding  the  fact that  the respondent  has  not sworn an affidavit  of means.  What  the applicant has  deposed  strongly is that he is not  employed and that he cannot  raise the decretal sum of kshs 395,218. 000.

In Butt vs Rent Restriction Tribunal  and Another Nairobi CA 6/79 the Court of Appeal stated that  the purpose of  stay of execution pending appeal is to  prevent  the appeal, if successful, from being  rendered nugatory.

In as much as I have found that  the appeal, on the face of it, is not  frivolous ,nonetheless, there is no proof  of substantial loss.

On whether  the applicant has  offered any security for the  due performance  of decree, it  is noted that  there is no such  offer and  what the  applicant deposes  is that  he is unemployed  and therefore  cannot raise  the  decretal sum.

Security for due performance  of decree is one of the inextricable  conditions for stay grant of execution of decree pending  appeal.  The applicant  rushed to this court  with an application  for stay upon learning  that his motor vehicle KAA 486V Pickup and KBG 974L Toyota among  other household  items had been proclaimed  as per the proclamation notice dated 23rd January 2015.

He  does not mention that he is willing to offer any other alternative security  for the due  of performance of decree.  I therefore find that the applicant has not fulfilled  all the 3 conditions for granting of stay of execution of decree pending appeal.

Stay of execution pending appeal is not a matter of right, even if loss  would result  if execution were to be  declined.  Nevertheless, the respondent  did not  controvert  the applicant’s  depositions by way of an affidavit  that he  was a person of unknown means  and that should  the amount   be paid  to him he shall be unable  to refund it should  the appeal herein succeed  thereby rendering  the appeal nugatory.

I wholly concur  with Honourable Kasango J in Kenya Orient  Insurance  Co. Ltd  V Paul Mathenge  Gichuki CA 40/2014 (2014)         e KLR  that when an applicant pleads  that the respondent  is not possessed  of means to refund  the decretal sum if the appeal succeeded, the burden of proof immediately  shifts to the respondent to prove  that he has the capacity to refund  the decretal  sum if the pending appeal  was determined  in the applicant’s favour.  See also ABN Amro Bank N v Le Monde Foods Ltd CA Nairobi 15/2002.

The respondent  did not  depose  as to his financial means  by way of an affidavit.  What his advocate endeavored to explain  in submissions was that the application was not instituted and  or prosecuted  by a pauper  as a  pauper application and that the applicant  was duly  represented  in the lower court by advocates and in this application and the appeal as intended and  has infact hired Senior counsel  to represent him and that he chose to be a litigant  hence he  cannot state  that he is unable to pay the  sums due.

In my view, that is not a factor to be taken  into account  in  determining  what substantial  loss is  and the submission is diversionary from the core legal principles.

The respondent failed to discharge  the evidential burden of his financial  means which  burden shifted to him to prove that he had income  or property that would enable  him refund the money  in the event  that the appeal succeeds.

On the issue of security for the due performance of decree, order  42 Rule 62(b) of the Civil Procedure Rules is clear that  it is the court that should decide in  its discretion what kind of security  if any an applicant should  provide for  the due performance  of decree depending on the circumstances  of each case, and if  the applicant fails to provide  any security  or undertaking as may be  ordered by the court, then he would not be entitled to a  stay as a stay is not a matter  of right for a party.

In the circumstances  of this case, the applicant  did not  lay  any ground  that would disentitle  the court to order  for security  for the due performance  of decree in as much  as he stated  that he is  unemployed .

As I have  stated earlier, there were 2 motor vehicles  in running conditions  proclaimed.  Being  unemployed  is not being a person of no means to deposit  security.  The decretal sum must also be  secured  to protect  the interests  of a successful litigant  in the court of the  first instance.

For the above  reasons, I exercise  my discretion and order that   there shall be stay of  execution  of decree  in Milimani         CMCC 2284 OF 2009 pending  hearing and determination of the intended appeal conditional upon the applicant  depositing  the whole decretal sum  into both advocates  joint interest  earning account  with a reputable  financial institution  within 45  days  from the date  hereof and in default, the stay herein lapses.

The intended  appeal to be filed and served  within 21 days  from the date  hereof.

Costs of this application shall be to the respondent.

Dated signed  and delivered in open court at Nairobi this  31st day of July 2015.

R.E. ABURILI

JUDGE

31. 7.2015

Coram R.E. Aburili J

C.A Samuel

Mr Malinzi for applicant

No appearance for respondent

COURT-   Ruling read and delivered in open court as scheduled.

R.E. ABURILI

JUDGE

31. 7.2015