JOHN MUCHIRI NDERITU AND JAMES NJOROGE KARANJA VS LUCY NJERI NJUGUNA

RULING

1. The Applicants/Appellants approached this court through Notice of Motion dated 15^th May, 2024 seeking orders thus;
2. Spent
3. That pending hearing and determination of this application inter-parties, this honourable court be pleased to issue orders of stay of execution of judgment issued in the primary suit being Nyahururu Chief Magistrate Civil Suit No. 115 of 2016, and any other consequential orders issued thereof.
4. That the honourable court be pleased to set aside the orders issued on 3^rd day of August, 2021 dismissing this appeal for want of prosecution and reinstate the same for full hearing and determination.
5. That this honourable court be pleased to re-instate the orders of stay of execution of judgment issued in the primary suit Nyahururu Chief Magistrate Civil Suit No. 115 of 2016 on the 22^nd day of May, 2018 pending hearing and determination of the instant appeal.
6. That costs be in the cause herein.
7. The substratum of the application is that the Applicants’ appeal was dismissed for want of prosecution without notice to parties; the delay in prosecuting the appeal was not authored by the Appellant but by unavailability of typed proceedings in the primary file being Nyahururu Chief Magistrate’s Civil Suit No. 115 of 2016, from the civil registry despite numerous requests for the same; despite numerous attempts to locate both the court files in the primary suit and instant High Court file for perusal to ascertain the status, the same were missing hence the delay in realization of the instant dismissal and further delay in lodging the instant application.
8. That the Applicants/Appellants are now apprehensive that the Respondent may at any time now commence execution of judgment issued in the primary suit as they have already commenced taxation of costs in the instant appeal which is not frivolous, as it raises serious issues on the exercise of the trial magistrate’s direction and the Appellant is still interested in prosecuting it.
9. The application is supported by an affidavit deposed by an advocate who has conduct of the matter, Dennis Muriithi Ndege who depones inter alia that the Applicant moved the court on 29^th January, 2018 seeking stay of execution which was granted on condition that half the decretal amount be paid to the Plaintiff and the balance be secured by issuance of the bank guarantee, a condition that was complied with.  That no assistance was accorded to trace the file that was missing.  That it was upon being served with the tabulation of costs on 30^th January, 2024 and upon reference to the newly installed Court Tracking Systems that it became apparent that the matter had been mentioned severally without his knowledge and the appeal was dismissed on 3^rd August, 2021.
10. That no notice was issued to them on the dates the appeal was mentioned and ultimately dismissed and that the Respondent having commenced taxation of the Bill of costs, execution process may be commenced against the Applicants.
11. In opposing the application, the Respondent filed a replying affidavit where she depones that following information from her advocates, the Applicants filed the appeal on 16/11/2017 but did not set the appeal for directions within prescribed timelines hence the appeal was dismissed 4 years later.  That the application seeking to reinstate the appeal was filed 3 years after filing of the appeal.
12. That the present application is an afterthought since a letter for costs was served on the Appellants through their advocates and there was a response where the advocates gave their proposal on costs which they were willing to pay.  That the application has been brought too late in the day with the intention of frustrating the Respondent.
13. The Application was canvassed through written submissions.  It is urged by the Applicants that failure to issue orders staying the execution of the judgment issued in the primary suit will not only render the intended appeal nugatory, but will also fly in the face of the principles of the rule of law and justice enshrined in the constitution.  He called upon the court to be guided by Order 42 Rule 6 of the Civil Procedure Rules, 2010 that grants the court power to grant stay orders.

In this regard he cited the case of Nicholas Stephen Okaka & Another v Alfred Waga Wesonga [2022] eKLR and Absalom Dova v Tarbo Transporters [2013] eKLR that have expressed themselves on principles that gives stay of execution.

1. That unless stay of execution is granted the Applicants will suffer substantial loss; that they have tendered the decretal amount in respect of the judgment and it has not been demonstrated if the Respondent is capable of availing the sum if the appeal succeeds, which would result into the Applicants/Appellants suffering great loss.
2. That on the question of there having been unreasonable delay on lodging the appeal, courts of law have interpreted it to be discerned on a case to case basis.  Reliance was placed on Re Estate Bare Adan Mohamed (Deceased) (Civil Appeal E013 of 2023) [2024] KEHC 3416 (KLR) (15 March 2024) (Ruling) where it was stated that;

“What is unreasonable delay is dependent on the circumstances of each case.  That even one day after judgment/ruling court be unreasonable delay depending on the judgment/ruling of the court and any order given thereafter.”

1. That the judgment in the case was rendered on the 17^th October, 2017, the Applicants filed the Memorandum of Appeal within 30 days stay of execution that had been granted by the honourable court.  That the delay was caused by unavailability of typed proceedings in the primary file.  That upon receipt of the proceedings the Applicants forthwith proceeded to prepare, file and serve the Record of Appeal.
2. On the question of security, it is urged that on advice of the court, the Applicants have already paid the full decretal sum to the Respondent which suffices as security and that the Applicants have succeeded in setting out a meritorious application which calls for award of costs.
3. It is submitted by the Respondent that judgment in favour of the Respondent was delivered on 17^th October, 2017.  That the Applicants filed the appeal against the judgment on 16^th November, 2017 but failed to set the same down for directions within prescribed timelines; the appeal came up on several dates including 22^nd July, 2021 and 28^th July, 2021 without any steps being taken hence being dismissed for want of prosecution, 4 years after it was lodged.  Reliance was placed on Stephen Kipsang T/A Spring Wood College v Tanui Kiptanui & 2 Others (2017) eKLR where it was held that principles for setting aside of an order for dismissal of a suit for want of prosecution are enunciated in the case of Mwangi S. Kaimenyi v Attorney General & Kenya Institute for Public Policy and Research [2014] eKLR where the court in the case of Utalii Transporters & 3 Others v NIC Bank & Another [2014] eKLR laid down principles whether;
4. There has been inordinate delay on the part of the Plaintiff prosecuting the case.
5. The delay is inordinate contumelious and therefore inexcusable.
6. The delay is an abuse of the process of the court.
7. The delay gives rise to substantial risk to a fair or causes serious prejudice to the Defendant.
8. That the only time the Applicants sought for typed proceedings was in the year 2019 as the letter dated 20^th March, 2021 was never filed in court and the absence of typed proceedings is not a plausible reason why the appeal was not prosecuted.  Having taken 3 years to file the instant application is clear guilt of lethargy and inertia.  That reinstating the appeal would be putting up with the Appellants’ indolence at the expense of the Respondent.  That the delay is inordinate and reinstating the appeal will be waste of the court’s time.  That the application is an abuse of the court process and away of delaying the Respondent from enjoying the fruits of the judgment.
9. That the Appellants will suffer no prejudice if the application is not allowed.
10. In determination of the application herein I do consider rival arguments put forth.  In this regard I will determine issues thus;
11. Whether the order dismissing the appeal dated 3^rd August, 2021 should be set aside and the appeal reinstated.
12. Whether stay of execution of the judgment in Nyahururu Chief Magistrate Civil Suit No. 115 of 2016 should issue.
13. Who bears the costs.
14. The Memorandum of Appeal herein was filed on 16^th November, 2017 and it was not until 29^th January, 2019 that the Honourable Deputy Registrar wrote to the Chief Magistrate’s Court seeking to be furnished with the original record of the lower court, a letter that was received on 5^th February, 2019.  Subsequently, on 8^th June, 2019 the original record together with proceedings; Ruling/Judgment were forwarded to the High Court.  The matter came up on 28^th July 2021 and the court dismissed it.  The court record reads;

“Appeal filed on 16^th November, 2017 but no appeal to date thus appeal dismissed and file closed.”

1. Although the court did not quote the provision of law under which the appeal was dismissed, it is envisaged that it was dismissed for want of prosecution.  Circumstances in which an appeal can be dismissed are captured in Order 42 Rule 20 and 35 of the Civil Procedure Rules which provide thus;

Order 42 Rule 20;

(1)Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, and has not filed a declaration under rule 16, the court may make an order that the appeal be dismissed.

(2)Where the appellant appears, and the respondent does not appear and has not filed a declaration under rule 16(3), the appeal may be heard ex parte.

Order 42 Rule 35;

(1)Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.

(2)If, within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal.

1. It is not clear under what circumstances the matter came up on 28^th July, 2021.  Both parties were absent, there is nothing on record to also clarify whether or not they were aware of the matter coming up on the slated date.  Therefore, the Appellants had the discretion of seeking reinstatement of the same as provided by Order 42 Rule 21 Civil Procedure Rules which enacts that;

“Where an appeal is dismissed under rule 20, the appellant may apply to the court to which such appeal is preferred for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.”

1. Apparently, no directions had been given in the matter and the Respondent had not moved the court to dismiss the appeal for want of prosecution.  Similarly, although four (4) years had lapsed, the Deputy Registrar had not sent out a notice to the parties of the court’s intention to dismiss the matter.
2. Therefore, I am persuaded by the case of John Nahashon Mwangi v Kenya Finance Bank Limited (in liquidation) [2015] eKLR where Gikonyo J. set principles that govern re-instatement of suits as follows;

“The fundamental principles of justice are enshrined in the entire Constitution and specifically in Article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court. These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need not multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such act are comparable only to the proverbial ‘’Sword of the Damocles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a court of law should consider whether there are reasonable grounds to reinstate such suit-of course after considering the prejudice that the defendant would suffer if the suit was reinstated against the prejudice the Plaintiff will suffer if the suit is not reinstated.”

1. It therefore behoved the Applicants to demonstrate that they had valid reasons of not moving the court to hear the appeal such that the dismissal was unjust.  Clearly, there was inordinate delay in filing the application for reinstatement of appeal which was done some 3 years later.  No doubt there was an intention to challenge the lower court decision on the damages awarded as the memorandum of appeal was lodged within the timelines set.  But, there seems to have been lack of diligence on their part because no action seems to have been taken after the trial court delivered a ruling on 8^th April, 2018.
2. The Applicants waited until a year later (5^th August, 2019) when they wrote to court seeking to be supplied with copies of typed proceedings to prepare the Record of Appeal.  the letter dated 20^th August, 2021 without a stamp impression of the court establishing receipt was authored a month after dismissal of the appeal.  They sat back until three years later when the Record of Appeal was filed.  The explanation given for the delay may not be justified.  However, as I have afore pointed out, there was a serious procedural flaw that may be remedied by reinstatement of the appeal.
3. On the question of stay of execution, this is guided by Order 42 Rule 6 of the Civil Procedure Rules which stipulate thus;

(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except 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 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 order as may ultimately be binding on him has been given by the applicant.

1. At the outset the trial court considered the question of stay of execution.  Conditions set were met by the Applicants.  In the result the judgment has not been enforced.  The appeal seeks an order of the court interrogating the damages awarded.  The question of liability having not arisen.  The issue of refund of what has been paid is unlikely to arise.  This means substantial loss may not be suffered.  The unreasonable delay in lodging of the application has been demonstrated and the security is in place.  It is apparent that the Applicants are not entitled to the stay of execution sought.
2. For reasons given, I order reinstatement of the appeal but decline to order stay of execution.  Costs of the application shall be borne by the Applicants.
3. It is so ordered.

Dated, signed and delivered virtually this 27^th day of February, 2025.