Mbaya v Ndurya & another [2023] KEHC 27378 (KLR)

Mbaya v Ndurya & another (Civil Miscellaneous E217 of 2023) [2023] KEHC 27378 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27378 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Miscellaneous E217 of 2023

DKN Magare, J

December 14, 2023

Between

Lydiah Nkatha Mbaya

Applicant

and

Khamisi Ndurya

1st Respondent

Bash Hauliers

2nd Respondent

Ruling

1. This is a ruling over a Miscellaneous Application dated 14/8/2023 seeking leave to appeal out of time CMCC 267 of 2019 and stay of execution pending the hearing and determination of the intended appeal.

2. The judgment was delivered on 9/5/2023. The Applicant stated that the Appeal was delayed due to failure to get the judgment on time.

Applicant’s Submissions 3. The application dated 14/8/2023, seeking stay pending appeal. The amount that was given was Kshs. 560,300/=. They state that Judgment was delivered on 9/5/2023. They state they delayed since they were yet to get a copy of Judgment. The question they have is quantum. They state the delay is not inordinate. They urge the court to exercise discretion.

Respondents’ Submissions 4. The Respondent filed 9-page long submissions. I have painstakingly read them. The Judgment sought to be appealed from was given on 9/5/2023. They state that they filed a replying affidavit dated 15/9/2023. They stated that there are 3 issues to be determined, that is: -a.Whether the applicant is to file a substantive appeal then seeks to admit the same out of time.b.Whether there is a good and sufficient cause.c.Whether the court should grant temporary orders sought by the application dated 14/8/2023. They addressed each issue seriatim.

i. Substantive appeal 5. They state that the application is incompetent since the appellant failed to file a substantive appeal first. They rely on the case Evans Kiptoo v Reinhard Omwoyo Omwoyo [2021] eKLR where the court stated as doth:-(14)I agree entirely with the submissions of Mr. Mwinamo for the respondent that the proviso to the above provision envisages that a substantive appeal be filed first; and that an application such as the one before the Court ought to be made in that appeal, seeking orders for the admission of the appeal out of time. This position was well explicated by Hon. Emukule, J. in Gerald M’limbine vs. Joseph Kangangi [2008] eKLR, thus:My understanding of the proviso to section 79G is that an applicant seeking “an appeal to be admitted out of time” must in effect file such an appeal, and at the same time seek the court’s leave to have such an appeal admitted out of the statutory period of time. The proviso does not mean that an intending appellant first seeks the court’s permission to admit a non-existent appeal out of the statutory period. To do so would actually be an abuse of the court’s process under section 79B which says:“79B Before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree part of a decree or order appealed against he may notwithstanding section 79C, reject the appeal summarily”

6. The second reason they give is that there is no good and sufficient cause. They rely on the Supreme Court authority of Mombasa County Government vs Kenya Ferry Services & Anor [2019] eKLR at paragraph 25 where the supreme court stated as doth: -(25)Concerning extension of time, this Court has already set the guiding principles in the Nick Salat Case as follows:“… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.“… we derive the following as the underlying principles that a Court should consider in exercising such discretion:1. extension of time 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;2. a party who seeks 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 on a case- to- case basis;4. where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the Court;5. whether there will be any prejudice suffered by the respondents, if extension is granted;6. whether the application has been brought without undue delay; and7. whether in certain cases, like election petitions, public interest should be a consideration for extending time” [emphasis supplied](26)Further, in the case of County Executive of Kisumu v County Government of Kisumu & 8 others, SC. Civil Appl. No. 3 of 2016; [2017] eKLR, this Court emphasized the need for the Applicant, in an application for extension of time, to satisfactorily declare and explain the whole period of delay to the Court. On the issue of delay occasioned by typed proceedings, we stated as follows:[24]a ground of delay of getting typed proceedings is not a prima facie panacea for a case of delay whenever it is pleaded. Each case has to be determined on its own merit and all relevant circumstances considered.”

7. They then addressed the issue of stay. They relied on the matter of the estate of Paulo Kiplagat [2012] eKLR, where the court stated as doth: -“On the issue of preservatory orders. Preservatory orders are in essence similar to injunctive orders. The Applicants have to make out a prima case and show that they will suffer irreparable loss if the order sought is not granted. The Applicants must also show the substantial loss they are likely to suffer which loss is irreparable and cannot be compensated by damages.”

12. On prima facie case the Respondent states that the test was set out in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others (2003) eKLR, the Court of Appeal stated:“So what is a prima facie case? I would say that in civil cases it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

8. They also relied on the case of Mara North Holdings Limited v Sanaet Ole Masek & 4 others [2015] eKLR where Justice Munyao Sila stated as doth: -“17. In assessing whether an applicant has made out a prima facie case, the court inevitably has to make a preliminary assessment of the case as presented by the applicant. Where the respondents have replied, this assessment has to be made in light of the rebuttals made by the respondents. At the end of it, the court needs to decide whether, on the face of it, the applicant has shown that his rights over the subject matter of the suit have been or may be infringed, or that the actions of the respondents, if not stopped, will so adversely alter the character of the subject matter of the suit to the detriment of the applicant. It must always be borne in mind, that what the court does in assessing whether a prima facie case has been established, is only a preliminary assessment, based on the material tabled before the court by the parties, at that preliminary stage of the proceedings. That preliminary assessment does not necessarily mean that the party in favour of whom it is made, must succeed at the trial, for such determination must await the final conclusion of the matter. But it is a determination which assists the court in making the decision on how best to have the subject matter of the suit preserved. (quotation mine).

9. On irreparable loss they rely on Nguruman Ltd vs Jan Bonde Nielsen & 2 Others (2014) eKLR, where the court stated as doth in respect of irreparable loss: -“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.”

10. They pray that the application dated 14/8/2023 be dismissed.

Analysis 11. The factors to consider in dealing with such an application are: -a.The length of delay.b.The reason for delay.c.The animus of the applicant.d.The prejudice to the Respondent.

12. The Applicant has explained the delay. It is my considered opinion that the 4 factors above are sequential. Therefore, one must fulfil each as you move to the next. If the delay is inordinate, in may not be necessary to go to the reason for delay. When the delay is reasonable, there must be a real and genuine reason for delay.

13. Where there is doubt, either way, the court can then exercise discretion one way or another. The court cannot find that the delay is inexcusable, inordinate and no reason is given and then, out of sheer whims and fiat, extend time. That makes litigation unpredictable and unending.

14. In our court system, delay is usually documented. Without documentation, it never happened. For example, a lost file where there is no record of follow up, is not lost. When applying for proceedings, they must first be as of necessity, a letter bespeaking the proceedings and payment of deposit. Without such, proceedings were never requested.

15. The raison d’etre for payment is to enable the court prioritize according to payment and only serious applicants for proceedings. Without payment, there are no proceedings being sought. Further, proceedings must be formally sought, even where the same were requested for in court, the registry must be moved and follow ups be done.

16. This is not the case in this matter. The delay is explained. I note that the court awarded Kshs. 10,500/= as special damages as opposed Kshs. 2,400/= which were pleaded. I agree with the Applicant that at least in special damages they have an arguable Appeal.

17. As relates to the delay, the Respondent did not oppose the same as inordinate. They relied on bad law to state that an appeal ought to be filed first. This is not the law. The Supreme Court has stated as doth on that issue in the case of. They also rely on the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR, where the Supreme court stated as doth: -“Comparatively, in United Arab Emirates v Abdelghafar & others 1995 IRLR 243 the Employment Appeal Tribunal laid down four principles to be observed in exercising the discretion to extend time. It stated at paragraph 7 thus:“In the light of the guidance contained in these authorities it is possible to state, with reasonable precision, the principles which govern the exercise of the Appeal Tribunal’s discretion to extend time and to identify those factors regarded as relevant.1. The grant or refusal of an extension of time is a matter of judicial discretion to be exercised, not subjectively or at whim or by rigid rule of thumb, but in a principled manner in accordance with reason and justice. The exercise of the discretion is a matter of weighing and balancing all the relevant factors which appear from the material before the Appeal Tribunal. The result of an exercise of a discretion is not dictated by any set factor. Discretions are not packaged, programmed responses.2. As Sir Thomas Bingham M R pointed in Costellow v Somerset CC (supra) at 959C, time problems arise at the intersection of two principles, both salutary, neither absolute.“… The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met…”The second principle is that:“…a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of a procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate. …”The approach indicated by these two principles is modified according to the stage which the relevant proceedings have reached. If, for example, the procedural default is in relation to an interlocutory step in proceedings, such as a failure to serve a pleading or give discovery within the prescribed time limits, the court will, in the ordinary way and in the absence of special circumstances, grant an extension of time. Unless the delay has caused irreparable prejudice to the other party, justice will usually favour the action proceeding to a full trial on the merits. The approach is different, however, if the procedural default as to time relates to an appeal against a decision on the merits by the court or tribunal of first instance. The party aggrieved by that decision has had a trial to hear and determine his case. If he is dissatisfied with the result he should act promptly. The grounds for extending his time are not as strong as where he has not yet had a trial. The interests of the parties and the public in certainty and finality of legal proceedings make the court more strict about time limits on appeals. An extension may be refused, even though the default in observing the time limit has not caused prejudice to the party successful in the original proceedings.An extension of time is an indulgence requested from the court by a party in default. He is not entitled to an extension. He has no reasonable or legitimate expectation of receiving one. His only reasonable or legitimate expectation is that the discretion relevant to his application to extend time will be exercised judicially in accordance with established principles of what is fair and reasonable. In those circumstances, it is incumbent on the applicant for an extension of time to provide the court with a full, honest and acceptable explanation of the reasons for the delay. He cannot reasonably expect the discretion to be exercised in his favour, as a defaulter, unless he provides an explanation for the default.”

18. I am satisfied that 2 ½ months delay though long, is not inordinate if an explainable is given and the said explanation is plausible. The same has not been challenged by the Respondent.

19. I dismiss limine the postulations related to preservatory orders. The entire submissions herein are totally irrelevant. The Respondent did not challenge the security given.

20. I therefore find that the application is merited and I allow the same.

Determination 21. The application dated 14/8/2022 is allowed in the following terms: -a.The Applicant is granted 14 days to file an Appeal out of time.b.There be stay of execution of Judgment and decree in Mombasa CMCC 267 of 2019 pending the hearing and determination of the intended appeal.c.The Applicant to give a bank guarantee for Ksh. 500,000/= as security pending Appeal. The same shall be provided by 25/1/2024. d.Costs shall abide in the intended appeal.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY OF DECEMBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Mirembe for the ApplicantMwakizozo for the first RespondentCourt Assistant - Brian