Stephen Muthamia Marete, David Gatobu Marete & Julius Murithi Marete v Patrick Kinyua M'iringo [2014] KEHC 2496 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

MISC. CIVIL APPLICATION NO. 13 OF 2014

STEPHEN MUTHAMIA MARETE.........1ST APPLICANT/INTENDED APPELLANT

DAVID GATOBU MARETE....................2ND APPLICANT/INTENDED APPELLANT

JULIUS MURITHI MARETE...................3RD APPLICANT/INTENDED APPELLANT

VERSUS

PATRICK KINYUA M'IRINGO...............................................................RESPONDENT

R U L I N G

This application is dated 24th March, 2014 and seeks orders:

1. The application be certified extremely urgent and be heard ex- parte in the first instance.

2. That this Honourable Court be pleased to issue orders of stay of execution of the Judgment/Decree in Meru C.M.C.C. NO.358 of 1998 pending the hearing and determination of this application or until further orders.

3. That the execution of the Judgment/Decree in Meru C.M.C.C. No.358 of 1998 be stayed pending the hearing and determination of this application or until further orders.

4. That this Honourable Court be pleased to grant leave to the Applicants to lodge appeal against the Judgment/Decree in Meru C.M.C.C No.358 of 1998 out of time.

5. That the costs of this application be costs in the intended Appeal.

Interim orders were issued for stay of execution of the apposite Judgement on 9. 4.2014 pending delivery of this ruling.

Before the application could be heard, the respondent through the firm of Charles Kariuki & Co. filed a Preliminary Objection on the following grounds.

1. The application does not meet the threshold set by the provisions of Order 42 rule 6 thus is incompetent.

2. There is no certificate of delay or application for the proceedings to warrant application of provisions of S 79 & 95 of CPA, Cap 21.

3. The decree has not been drawn to precipitate execution.

4. There is no probability of success of the intended Appeal.

5. No security is preferred as required by law.

I will not take a lot of time in dealing with the preliminary objection. The applicant has opposed it on the ground that it does not raise pure points of law.  I agree with the applicant. To demonstrate that it does to raise pure points of law, ground 3 will automatically draw arguments through its claim that the decree obtained by the plaintiff is not intended to precipitate execution.  Ground 4 raises the issue of probability of success of the intended appeal.  This ground definitely attracts arguments.  I dismiss the Preliminary Objection.

In his submissions, the applicant says that the judgment in the suit that spawns this application was delivered  on 6th February, 2014 in the absence of both parties and only in the presence of the Court Clerk.  He continues to say that the applicants and their counsels were under the mistaken belief that judgment would be delivered on 26th February, 2014.  They do not explain at all the genesis of the  mistaken belief.  They go on to say that they could not have appealed without obtaining the leave of Court as by the time they became aware that the judgment had been delivered, the period provided by law for lodging their appeal had expired.  They argued that they stood to suffer double jeopardy of losing land and the money they paid as purchase price.  They submitted that the respondent would not suffer prejudice as the respondent will have a chance to be heard in the intended appeal.

The applicant proffered a plethora of cases.

The respondent has opposed the application.  It is argued for him that Order 42 Rule 6, which he, inter alia, the applicant says he is relying upon is not applicable as according to him, the order deals with granting of temporary injunctions.  For the same reason, he argues that this Court has no jurisdiction to grant the orders sought.  Nothing can be further from the truth.  Order 42 rule 6 squarely deals with stay of execution.  It is also argued that the applicant has not satisfied the requirements of Order 42 Rule 2 (I) (a) and (b) and rule 3.  The respondent has also argued that sections 79 and 95 of the Civil Procedure Act can not assist the applicant.  Indeed he argues that S 79 does not deal with extension of time to file appeals.

I have considered the averments, the authorities and the submissions of the parties.

I find that many of the authorities proffered by the applicant constitute good law in the right circumstances but not in the circumstances of this case.  They deal with disparate  situations such as Exparte Judgments, Limitation, Interlocutory Judgments etc.  None of them was delivered after the promulgation of the Civil Procedure Rules, 2010 which contains the present provisions governing Stay of Execution.

I strongly deprecate the applicant's suggestion that the absence of the parties and their advocates can be a basis for a party to pray for an order to extend time for filing an appeal.  This can not be the case unless the Court delivers its judgment secretly.  In this case the applicants do not explain how the mistaken belief that judgment would be delivered on 26. 2.2014 instead of on 6. 2.2014 came about. A judgment is delivered on the appointed day whether the parties are there or not.  The important thing is that it is delivered in Open Court.  Many judgments have been delivered in the presence of only the Judicial Officer and Court Clerks.  Courts cannot be held to ransom by parties who refuse to come to hear their judgments/rulings delivered and then use the pretext of their absence to seek consequential orders.  Parties can also not use the excuse that they were misled by their advocates to avoid operation of the provisions of statutory law.  This is not a technical matter.  It is a substantial legal issue.

I do not agree with the respondent's submission that Section 79 of the Civil Procedure Act has nothing to do with extension of time to file appeals.  The proviso to the Section says: “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.”  As Shakespeare opined, “A rose by any other name would smell as sweet”.  This is “extension of time” even though the section does not use those words. What matters is what something is, not what it is called.

With regard to this application, I opine that should this Court grant an order under section 69 G or under any other section or rules, the Court has unfettered discretion to enlarge the subject period.  As this Court at this point in time has not granted any orders to the applicant this section will not be useful to the applicant in his circumstances.

Order 42 Rule 6 (2) directs that no order for stay of execution may be made under sub- rule (1) unless:-

(a) The Court is satisfied that substantial loss may result to the applicant 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 oder as may ultimately be binding on him has been given by the applicant.”

I find that the respondents may suffer substantial loss, if an order of stay of execution is not granted.  I also find that this application was filed without unreasonable delay.  I further find that the applicants have satisfied me that through a mistaken belief regarding the date judgment was to be delivered, although they indirectly blame their advocates, they have good and sufficient cause for not filing  the appeal on time.  I will, therefore, judicially exercise my unfettered discretion to allow the applicants' application upon the following conditions.:-

1. The applicant  must deposit the sum of Kshs.400,000/= in court within 30 days as security before an order of stay of Execution of the judgment in CMCC No.358 of 1998 can be formally be operative and issued.

2. Leave to appeal by the intended appellants (the applicants) is allowed but the leave or the consequential appeal will not operate as a stay of execution unless Order 1 above is complied with.

3. The applicants to lodge and serve the record of Appeal within 30 days of the date hereof.

4. Costs of this application shall be in the intended appeal.

It is so ordered.

Delivered in open court at Meru this 8th day of July, 2014 in the presence of:

Cc.

Nyenyire h/b Kiambi for Applicant's

Rimita h/b Kiome for Respondent

P. M. NJOROGE

JUDGE