Mwiti v ZKN (Suing as father and next friend of TK) [2022] KEHC 13784 (KLR)

Mwiti v ZKN (Suing as father and next friend of TK) (Civil Appeal E020 of 2022) [2022] KEHC 13784 (KLR) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13784 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E020 of 2022

TW Cherere, J

October 13, 2022

Between

Adams Mwiti

Appellant

and

ZKN (Suing as father and next friend of TK)

Respondent

Ruling

Background 1. On January 20, 2022, the court in Nkubu entered judgment in Nkubu PMCC No 96 of 2019 in favour of the respondent as against the appellant for Kshs 920,000/-.

2. By a notice of motion dated March 14, 2022, appellant sought stay of execution of judgment in Nkubu PMCC No 96 of 2019 pending the hearing and determination of the appeal.

3. By a ruling dated May 19, 2022, made the following orders:1. There shall be a stay of execution of judgment in Nkubu PMCC No 96 of 2019 pending the hearing and determination of the intended appeal on condition that the appellant shall:a.Deposits Kshs 500,000/- (five hundred thousand) with the court within 14 days from today’s dateb.Furnish a bank guarantee from Family Bank as security for the balance of the decretal sum within 30 days of today’s date2. The appellant is directed to file and serve the record of appeal not later than 21 days’ from today’s date3. Mention on June 22, 2022 to confirm compliance with orders 1 and 2 above4. Costs shall abide the outcome of the intended appeal

4. By another notice of motion dated July 12, 2022 filed on July 15, 2022, appellant seeks extension of orders dated May 19, 2022 mainly on the ground that the orders were issued in absence of counsel for the appellant.

5. The application is opposed vide the respondent’s replying affidavit sworn on September 26, 2022 in which he accuses the appellant of using delaying tactics to deny him the fruits of his judgment. He faults the appellant for not filing the appeal since January 20, 2022 when the judgment the subject off this appeal was delivered.

Analysis and Determination 6. I have considered the application in light of affidavit on record the issue for determination is whether there ought to an extension of orders issued on May 19, 2022.

7. The record appropriately reveals that the ruling dated May 19, 2022 was indeed delivered in the absence of appellant’s counsel. Ms Sharon Laboso, avers that she learnt about the ruling upon perusing the file but fails to disclose when she perused the file.

8. And even if for arguments sake appellant’s counsel learnt about the ruling dated May 19, 2022 on May 31, 2022, it has not been demonstrated that appellant has taken any step towards complying with the ruling but has been caught up with lapse of time.

9. Further to the foregoing, it took the applicant about 2 months from the date of the ruling dated May 19, 2022 and 42 days from the date that counsel allegedly learnt about the ruling dated May 19, 2022 to move the court to extend time. The delay has not been explained to the satisfaction of the court or at all.

10. The foregoing notwithstanding, I appreciate that applicant ought to be allowed to have the issues raised in the appeal determined on merit. Consequently, it is hereby ordered as follows:1. Extention of time for compliance with conditions for stay of execution is declined2. Time for filing the appeal is extended for 30 days from today’s date3. Applicant shall bear the costs of this application

DATED IN MERU THIS 13TH DAY OF OCTOBER 2022T.W. CHEREREJUDGEAppearancesCourt - Morris KinotiFor Appellant/Applicant - Ms. Hyimo for Kimondo Gachoka & Co AdvocatesFor Respondent - Mr. Kaimba for Kaimba Peter & Co. Advocates