West Kenya Sugar Co. Ltd v Titus Chivuyi Mulela [2022] KEELRC 962 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS  COURT

AT BUNGOMA

MISCELLANEOUS NO. E008 OF 2021

WEST KENYA SUGAR CO. LTD.....APPLICANT

VERSUS

TITUS CHIVUYI MULELA...........RESPONDENT

RULING

1. The   Applicant approached  the court  by way of Notice of Motion dated  1st November  2021  seeking  the following orders:-

a. That the application be certified urgent and the same be heard exparte in terms of prayer 2 in the 1st instance.

b. That this Honorable Court be pleased to grant stay of execution of the decree in BUTALI SRMCC NO. 11 OF 2017 TITUS CHIVUYI MULELA V WEST KENYA SUGAR CO. LTD  pending hearing and determination of this application inter partes.

c.  That this Honorable Court be pleased to grant leave to the Applicant  to file appeal out of time from this judgment  and decree in BUTALI SRMCC NO. 11 OF 2017 TITUS CHIVUYI MULELA V WEST KENYA SUGAR CO. LTD

d. That this Honorable Court be pleased to grant stay of execution of the decree in BUTALI SRMCC NO. 11 OF 2017 TITUS CHIVUYI MULELA V WEST KENYA SUGAR CO. LTD  pending lodgment, hearing and determination of the appeal to be filed in this Honourable Court.

e. That the date for inter partes hearing of this application be granted.

f.  The intended appeal be admitted out of time.

g. Cost of this application be provided for.

2. Orders (b) and € are spent.

3. The Application is supported by the Affidavit of Dancan Otieno Ngoga  Advocate  sworn on the 1st November 2021  and a further  affidavit by  same Advocate  sworn on the 29th November, 2021.

4. The Application is brought under  Section 1a, 1b and 3a of the Civil Procedure Act  ( Cap 21)  and order  42 Rule  6 (1)  Order  51 Rule 1 and of the Civil Procedure Rules  2010  and all the enabling Provisions of the law.

5.  The Application is opposed by the Respondent whose  Advocate  filed grounds of opposition dated 4th November 2021 namely:-

a.  That the Application is bad in law , non-starter , misconceived, incurably defective  and unsustainable  and offends the mandatory provisions of Orders 9 and Rule 9  and 19 rule 3 of the Civil Procedure Rules.

b. That the Applicant has no demonstrated sufficient cause  to warrant grant of orders sought.

c.  That the application is brought under the wrong provisions of the law.

d.  That this Honourable Court is devoid of jurisdiction.

e. That the application is aimed at wasting the court’s limited judicial time

f. That the application is an afterthought meant to steal a judicial match

g. That the application is an abuse of court process  as it is frivolous , vexatious and untenable.

h. That no decretal sum is being held in a joint account.

i.  That it is in the interest  of justice that the Applicant’s application  be struck out forthwith with costs.

6. The Application was canvassed by way of written submissions.  The Applicant’s written submissions are dated  29th November 2021.  They are filed by L.G.  Menezes & Company Advocates. The Respondents/Plaintiff’s written submissions are dated  30th November  2021  and filed by Abok  Odhiambo  & Co. Advocates.

DETERMINATION

Jurisdiction of the court.

7. The Respondents to the Application have stated in grounds of opposition that the Honourable court is devoid of jurisdiction.  The Respondent did not address the issue in his written submissions which  issue in the opinion of the court is a serious. issue, The court cannot take a further step in this application without jurisdiction.  What is before the court is an application for leave to file appeal out of time and for grant  of stay of execution  of the Judgment at the lower court pending the lodgment, hearing and determination of appeal to be filed.

8. The Applicants had previously filed appeal at Kakamega High court being Civil Appeal No. 29 of 2019 . The Appeal was struck out by the court before the hearing for being filed in the wrong court.  It is trite law that a party whose appeal has been struck out as incompetent has the liberty and right to restart the appellate process. Consequently, this court has jurisdiction to deal with this application and also any appeal that may be filed if leave is granted to the Applicants.

Whether the Applicant’s Advocate is competent to file this application

9. The Respondent submits that this application is incompetent having been filed by a stranger. That the Applicant has not complied with the strict and mandatory provisions of order 9 rule 9 of the Civil Procedure Rules which states :-

‘Incase there is a change of advocates or when a party decided to act in person having previously engaged an advocate, after judgement has been passed. Such change or intention to act in person shall not be affected without an order of court:-

a. Upon an application with notice to on the parties or

b. Upon a consent filed between the outgoing advocate and the proposed incoming advocate or a party intending to act in person as the case may be.’

10. The Respondent in further affidavit dated 29th November 2021 admits that the law firm of Olendo, Orare  & Samba  Advocates was on record at trial court.   The Affidavit further states that on the 16th October, 2021 they entered a consent with the former law firm to allow  the firm of MS  L.G.  Menezes  & Company advocates to come on record  for the Applicant, Respondent  in the original suit Kakamega   CMCC NO.  11 of 2017 and filed on 28th October 2021. .  The said consent is annexed as “DOM1”.

10. The Respondent submits  the rule requires court order which has not been presented.  The Applicant states by having filed the consent before these proceedings commenced  and  in the trial court they are complied and are competently before the court. The Respondent submits that the reasoning behind the provisions of  Order 9 Rule 9 of the Civil Procedure Rules  is articulated in the case  of SK  Tarwadi  -vs  Veronica  Meiehhmann (2019) eKLR it is stated  the Judge  observed:-

“In my view the essence of the order 9 Rule  9 of the  CPR  was to protect advocates from the mischievous  clients who will wait until a judgment is delivered and then sack the advocate and either replace him.”

11. The Respondent has filed several persuasive authorities of the High Court including one in which consent had been filed like in the instance case  and the Judge said there was no order of court being in John Langat  -vs  Kipkemboi Terer  & 2 others (2013)  EKLR   to Simon Barasa  Obiero  -vs Onyango   Obiero  (2016) eKLR .

12. The court finds that the outgoing advocate and the advocates now for Applicants having filed  consent in the lower court the mischief alluded to in the SK Tarwardi  case has been addressed.  The court is mindful of the constitutional provisions under Article  159 (2)  (d) on procedural technicalities.  The mischief having been addressed the insistence on full compliance  by the court issuing an order when the filed consent was addressed to court would then amount to procedural technicality.

13. I am persuaded by my brother Judge of the High Court W. Korir where he held a similar opinion in Simon Barasa  Obiero  -vs  Jackson Onyango  Obierio  (2016)  eKLR    paragraph  12 which I adopt with approval to wit:-

“ The rule in my view  is intended  to protect the interests of the outgoing Advocate. Failure to comply with the rule was not in any way prejudice to the other party. Unlike my brother S. M  Kibunja  Judge  who holds  the view that any thing filed where there is non compliance with order 9 Rule 9 is null and void ab-initio, I would look at such omission which a kinder eye and depending on the circumstances of the case. I would allow  such non- compliance  to pass where the interest of the outgoing  advocate have been taken care of and where no prejudice would be suffered by the other party”.  I do uphold this holding.

14. The court has said enough and is satisfied  that the law firm of L G Menezezes is not a stranger having filed notice of change and consent with outgoing  advocate on 28th October  2021  before  lodging the instant application .

Whether to grant leave to file appeal out of time.

15. The Judgement in the lower court Butali SRMCC NO.  11 of 2017  was delivered on the 18th February 2019  and appeal  lodged against  the Judgement vide Kakamega  High Court Civil Appeal No. 29 of 2019 . There was no issue of non- compliance in that court with timelines but the appeal was struck out for being filed in the wrong court vide a ruling dated  6th August, 2021.

16. The Applicant states that they applied for transfer and the Application was dismissed on 4th October, 2021. They state that the delay in filing the appeal is due to the fact that  the previous appeal to the High court at Kakamega was struck out on technicality and its merits not considered, that their appeal has high chances of success and the delay is excusable. That the Respondent is a person of  straw as her  his evidence in court and if the decretal sum is paid the intended appeal will be  rendered nugatory as it is impossible to recover the  amount if appeal succeeds. The Applicant states security of performance  has been deposited in joint interest earning amount in the names of advocates for parties who were on record  at the trial court.

16.  The application to appeal out of time is opposed by the Respondent on ground that the Applicant has not demonstrated sufficient cause to warrant orders sought.  The Respondent on grounds of opposition states that no decretal sum is being  held in joint account and the application is an after thought meant  to steal  a judicial  match.  The court notes that in the further affidavit filed after response the Applicant did not give evidence of the deposit of security performance  which was denied by the Respondent. The court believes that there is no deposit of security performance as alleged by Applicant.

17. The Respondent states that Application for  leave to appeal out of time has been brought under the wrong  provisions of the law.  That the Applicant cannot purport  to rely  on the provisions of Order  42  Rule  6  of the Civil Procedure Rules since the same deals with stay of execution pending appeal. That   is correct, however the court notes that the Applicant invoked all enabling laws  and the court is also guided  by  Article  159 (2)  (d). Section 79 (a) of the civil procedure Act 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 from the preparation and deliver to the Appellant of a copy of decree or orders.:- “ provided  that an appeal may   be admitted out of time if the appellant satisfies the court that the had good and sufficient cause for not filing the appeal out of time”  Section 95 of the Civil  Procedure  Act  gives discretion to court to extend  time  where it was expired.

16. Has the Applicant satisfied  the court of good and sufficient cause for not failing appeal out of time?  As outlined earlier in this decision the Applicant explained the cause of delay and of the entire time from the date of judgement what transpired to the appeal   struck out for having been filed in wrong court and rejection of application to transfer the struck out appeal.  The  court is satisfied  the entire period  of delay is explained as was held  in the case of George Kangethe Waruhiu  -vs Esther  Nyamwerur & another (2021) Eklr  where it was held that the entire period must be explained satisfactory.

17. The  Applicant  has  annexed a draft memorandum of Appeal which  challenges  the findings on quantum  and liability and on perusal of the entire memorandum the court is satisfied there is arguable points and it is in the interest of justice to  allow a meritorious  appeal  to be argued.

On the  issue of stay decree of lower court pending the filing and determination of the appeal

20.  I already agreed with the Respondent there is no evidence of decretal amount having been deposited in a joint amount between advocates on record at trial court.  The Applicant had a burden to prove  the same in the further  affidavit, the Respondent having denied the allegation.  Order  42 (6)  (2) sets two  key  conditions for grant of stay.

1. That  substantial  loss may result to the Applicant  unless the order is made and application is made without unnecessary delay.

2. Such security as the court order for the due performance of such decree as order as  may  ultimately be binding on her has  been given by the Applicant.’

21. As  it stands  there is no compliance with issue of security for performance deposit.  I will proceed to address the question of substantial loss.  The Applicant submits  that this is a money decree that the Applicant seeks to appeal against  and there will be substantial loss to the Applicant if the stay is not granted. That the Respondent has not shown  they are able to refund the decretal amount if the appeal succeeds.

20. The court of appeal has settled the principles for leave to file appeal out of time and stay of execution in the case cited  by Justice Ongudi  in MFI Document Solutions Ltd v Paretto Printing Works Limited (2021)eKLR of Butt  -vs  Rent   Restriction Tribunal ( 1982) KLR  417  where the Court of Appeal gave guidance on how a court should exercise discretion in an application for stay of execution and held that:-

“1. the power of the court to grant  or refusal an application for a stay of execution is a discretion of power.  The discretion should be exercised in such a way  as not to prevent an appeal.

2. The general principle is granting or reusing a stay is : If  there is no other overwhelming hindrance , a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge ‘s discretion. (sic)( trial court judgement).

3. A judge should not refuse a stay if there is a good grounds for granting it merely because in his opinion a better remedy may be available to  the applicant at the end of the proceedings.

4. The court in exercising  its powers under order XLI   rule 4 (2)  (b) of the civil procedure Rules  can order security upon application by either party or on its  own motion. Failure to put security of costs as ordered with cause  the order for stay of execution to lapse”.

21. The Decree/Judgement sought to be challenged in the instant application is a monetary decree.  Costs and Interest can adequately cover any prejudice the Respondent may suffer if the Applciation is granted. The Applicant is a limited company  which indicates there is security of performance given and the court having  found no evidence of  the security the same must be met.

22. I find merit  in the Application dated 1st November 2021 and issue the following orders:-

1. That Leave is granted to the Applicant to file appeal out of time from the judgment and decree in BUTALI SRMCC NO. 11 OF 2017  TITUS CHIVUYI MULELA   V WEST KENYA SUGAR CO. LTD . The appeal should be filed within 14 days.

2. There shall be a stay of execution of the judgment and Decree in BUTALI SRMCC NO. 11 OF 2017  TITUS CHIVUYI MULELA   V WEST KENYA SUGAR CO. LTD  on condition that the decretal amount is deposited  in a joint  interest earning account in the names of the two law firms Abok Odhiambo  & Company advocates and M/S  L.G Menezes & Company which are representing parties in the instant application within 14 days.

3. Failure to comply  with any of the orders will lead  to automatic vacation of the orders Nos. 1 and 2 above.

4. Costs to the Respondent in any event.

Orders  Accordingly

WRITTEN, SIGNED  AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 27TH DAY OF JANUARY, 2022

J. W. KELI

JUDGE

In the presence of :-

Court Assistant – Brenda Wesonga

Applicant:- Otieno  Njoga  Advocate

Respondent:- Abok Advocate