Mburu & another v Hussein & another [2023] KEHC 24256 (KLR)

Mburu & another v Hussein & another (Civil Miscellaneous Application E021 of 2023) [2023] KEHC 24256 (KLR) (Civ) (27 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24256 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Miscellaneous Application E021 of 2023

AN Ongeri, J

October 27, 2023

Between

Hillary Maina Mburu

1st Applicant

Samuel Mwenda Nzioki

2nd Applicant

and

Mohamed Jilo Hussein

1st Respondent

Gituma George

2nd Respondent

Ruling

1. HCC MISC case no. E021 of 2023 was consolidated with HCCA No. E209 of 2023 for reasons that both relate to Milimani CMCC no. 9276/2019 and the parties are the same.

2. There are two applications coming for consideration in this ruling which are as follows.

3. The application dated 18/1/2023 filed in HCCMISC E021 of 2023 seeking the following prayersi.That this application be certified as urgent and be heard ex parte in the first instance.ii.That this honourable court be pleased to extend time and grant leave to the applicants to file a memorandum of appeal out of time against the judgment entered on March 11, 2022 by the Honourable P. Muholi (Mr.) Principal Magistrate.iii.That this honourable court be pleased to stay the execution of the said judgment pending the hearing and determination of this application.iv.That this honourable court be pleased to stay the execution of the said judgment pending the hearing and determination of the intended appeal.v.That this honorable court be pleased to issue an order of injunction, restraining the respondents, his agents and or servants from selling, transferring and or alienating the applicants motor vehicle registration number KCS 085B and or any other property in the name of the applicants.vi.That this honourable court be pleased to make an order for the release of the applicants motor vehicle registration number KCS 085B and any other property that the respondents auctioneers and or agent Messer Camelian Enterprises is withholding with no orders as to costs.vii.That the honourable court be pleased to issue an order on security payable by the applicant’s underwriter in the form of a bank guarantee by a reputable bank in favour of this court.viii.That this application be heard inter parties on such date and time as this honorable court may direct.ix.That this honourable court be pleased to issue any other orders that it may deem fit, just and expedient in the interest of justice.x.That the costs of this application be in the cause.

4. The second application coming for consideration is dated 21/3/2023 filed in HCCA No. E209 of 2023 also seeking the following prayers;i.That this application be certified as urgent and be heard ex-parte in the first instance on a priority basis for reasons stated in the certificate of urgency.ii.That this honourable court be pleased to stay the execution of the judgment and decree of the Honourable P. Muholi passed on 11th March 2022 pending the hearing and determination of this instant application and the appeal herein.iii.That this honoruable court be pleased to issue an order of injunction, restraining the respondents his agents and or servants from selling, transferring and or alienating the applicants motor vehicle registration umber KCS 085B and or any other property in the name of the applicants pending the earing and determination of the appeal.

5. The two applications are opposed by the replying affidavit of Kisiangani Eddah dated 13/2/2023 and a further affidavit that is undated. In them he deponed that the respondent instituted the suit herein against the applicants which suit was defended and the issue of notice of notice of entry of judgement as provided by the law is far fetched and inapplicable in the circumstances. Judgment was delivered on 11/3/2022 and notice on the same updated on the Kenya Law platform. The decree was extracted 6 months after delivery of the judgement and the applicant made no effort in determining the position of the matter.

6. He averred that despite being made aware of the court’s judgement on 31/10/2022 the applicants’ affidavit does not explain the two and a half months delay in filing the intended appeal. The provided security in form of a bank guarantee is inadequate considering that there is a possibility of the proposed banks not honoring the same. Additionally, the applicants have failed to demonstrate the substantial loss to be suffered if the stay is not granted.

7. The parties filed submissions as follows; the applicants submitted that judgement in Milimani Commercial Courts CMCC 9276 of 2019 was delivered in 11/3/2022 and they ought to have filed their appeal as at 11/4/2022. However, the applicants argued that the delay was not so ordinate and the delay was attributed to the fact that the file could not be located at the registry. The applicant’s advocate could not get a copy of the judgement in order to prepare and lodge the appeal out of time. Further that even with structures put in place for electronic filing by court, the applicant was still not in receipt of a copy of judgement in time to lodge the memorandum of appeal.

8. The applicant argued that the respondent has not shown how he will be adversely affected or prejudiced if the applicant is allowed to appeal out of time. The respondent will also not be prejudiced as the applicant has already deposited half of the decretal sum in court as security for the appeal. That further the respondent has not furnished this honorable court with evidence to show that he is capable of refunding any monies paid to him.

9. The applicant submitted that the appeal has high chances of success owing to the fact that it is a personal injury claim with an award of Kshs. 653,613 as damages yet there was overwhelming evidence that the respondents were authors of their own misfortune.

10. The respondent submitted that extension of time is an equitable remedy and not a right of the litigant. The party that seeks the extension, bears the burden of satisfying the court that its application is worthy of the exercise of this discretionary power. It is not in disputed that judgement herein was delivered on 11/3/2022. The suit herein was vehemently defended and the issue of notice of entry of judgement inapplicable. It is evident from the applicants pleading that they were indolent in following up with the matter and never bothered to indulge the trial court’s registry or check the notice section at the Kenya Law Reports on delivery of judgement.

11. Further despite being made aware of the trial court’s judgement the applicants never appealed the said judgement and filed a frivolous application dated 5/12/2022 which was dismissed on 27/2/2023 and thus precipitated the present application. The application herein is an afterthought and another tactic by the applicants to delay the matter and embarrass the plaintiff’s case.

12. The respondent argued that it is trite that an order to stay execution pending appeal presupposes that existence of an appeal and there having no appeal in this case the prayer for stay of execution cannot hold. Further, the applicant has not given an explanation for the delay in filing the present application. He has also failed to demonstrate what substantial loss it will suffer should execution issue. Finally, the applicants have offered security for due performance of the decree in the form of a bank guarantee which has since expired. The same is therefore untenable and in the circumstance the applicant has failed to meet the conditions for a stay pending appeal.

13. The issues for determination in the two applications are as follows;i.Whether the appellant/applicant should be granted leave to appeal out of time.ii.Whether the applicant is entitled to stay of execution pending appeal.iii.Whether the motor vehicle registration no. KCS 085B attached by the respondent should be released to the appellant.

14. On the issue as to whether the appellant should be granted leave to appeal out of time, the governing provision is order 79G which provides as follows;“Every appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against excluding from such period anytime which the lower court may certify as having been requisite for 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."

15. I find that the applicant has submitted that he did not know when the judgment was delivered.

16. He learnt about the delivery when auctioneers attached their motor vehicle on 19/11/2022.

17. In the circumstances it is in the interest of justice that the appellant/applicant be granted an opportunity to exercise his right of appeal, I extend the period of filing the appeal by 30 days.

18. On the issue whether he appellant is entitled to stay of execution pending appeal, the governing provision is order 42 rule 6 which states as follows;“(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 Applicants 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 applicants”.

19. The duty of this court is to balance the interests of the parties. The appellant has a right to appeal while the respondent has a right to enjoy the fruits of his judgment.

20. I grant the appellant stay on condition that the entire decretal sum is deposited in court within 45 days of this date.

21. On the issue as to whether motor vehicle registration no. KCS 085B attached by auctioneers should be released, since the appealing/applicant has been granted leave to appeal out of time and stay of execution, I direct that the motor vehicle be released upon the appellant/applicant paying the auctioneers charges.

22. The two applications are allowed in the following terms;i.That the appellant/applicant is granted an extension of 30 days to file the appeal.ii.That stay of execution pending appeal is granted on condition that the entire decretal sum is deposited in court within 45 days of this date.iii.That motor vehicle registration no. KCS 085B be released upon the appellant/applicant paying the auctioneers charges.iv.That the costs of both applications to abide the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 27TH DAY OF OCTOBER, 2023. .......................A. N. ONGERIJUDGE