INTRODUCTION
1. Before me for determination is the application dated 29.11.23 2023 seeking stay the execution of the Judgment of Hon. Ocharo (SPM) delivered on 29th June, 2023 in Kisii CMCC No. 786 of 2021 as well leave to file an Appeal out of time, seeking an temporary orders of injunction against the respondent and the auctioneer against attaching and selling the property of the applicant in execution of the decree dated 21.11.23 , lifting the proclamation of attachment of movable property dated 29th November, 2023 together the warrants of attachment of movable property issued 28th November, 2023 pending the hearing and determination of the Application of this application, stay of execution of the judgment pending hearing and determination of this application , enlargement of time to file the intended appeal and that the appeal be filed within 14 days of granting of the said leave among other prayers which have been spent .
2. The Application is based on the grounds raised on their face and the averments in the affidavit sworn by and Lilian Sogo. The Applicant claims that the respondent has a judgment and decree in his favor in Kisii CMCC NO. 786 of 2021 which judgment was delivered on 29th June, 2023 by Hon. C. Ocharo for a sum of Kshs. 788,716.74 in the absence of parties. In the said Judgment an order of 30 days stay of execution was granted which 30 days expired on 29th July, 2023 thus exposing the applicant. The Applicant revealed that said judgment was set to be delivered on 28th June, 2023 but the same date fell on a public holiday which therefore meant the said Judgment was supposed to be delivered after notices had been served to the parties. However the Judgement was delivered in the absence of the parties and no notice of its delivery was given the parties to enable them attend court. The Applicant went on to state that it wrote a letter dated 20th July, 2023 to court through it’s advocate seeking to be supplied with a certified copy of the judgement together with typed proceedings and the same was supplied on the same day.
3. Upon perusal and deliberations on the said judgment, it became apparent to the Applicant that the court took into account matters beyond the scope of the trial issues and thus it instructed its advocate on record to file an application seeking to leave to file an appeal out of time against the judgement given they unable to get typed proceeding in good time. Subsequently, an application dated 8th August, 2023 was lodged in court under certificate of urgency seeking stay of execution of judgment of the trial court and leave to appeal out of time. However, there were no interim orders of stay pending the hearing of application Interpartes that was set for 4th December, 2023. The respondent commenced the execution process and instructed Moco auctioneers to proclamation property of the applicant vide instructions dated 28.11.23 and the auctioneer proceeded to proclaim the property vide proclamation dated 29.11.23 and also took out a warrant for sale dated 28.11.23 . The action of the respondent thus necessitated the filing of the Application dated 29th November, 2023 seeking stay of the said commenced execution .
4. The Applicant contended that the intended Appeal has overwhelming chances of success and it is in the interest of justice to preserve the applicant’s assets pending the hearing and determination of the same. It also contended that unless the orders of stay are granted, it stands to suffer substantial and irreparable loss and that the intended appeal will be rendered a nugatory. It indicated that it was willing to furnish security of the Appeal as per the directions of this court. It underscored also that this applications have been filed timely and interest of justice and fairness the same should be allowed. It was its contention that the respondent will not suffer any prejudice if the orders sought in the application are granted.
5. In response to the Application, the Respondent filed grounds of opposition dated 7th December, 2023 wherein he stated that there was no appeal preferred against the judgment of the lower court since it was delivered on 29th June, 2023. He contended that the Application offended the provisions of order 42 rule 6(2). He also stated that the Applicant was granted a 30 days stay of execution from the date of delivery of judgement which expired on 29th June, 2023 which lapsed on 29th July, 2023 but the Applicant has not demonstrated to this court what steps he undertook towards filing the appeal and thus it not deserving of the grant of an order of stay.
6. He claims that the applicant has not set out grounds to support his application for leave to appeal of out of time to warrant the grant of the same. The Applicant has also contended that the lamping up two application seeking stay and extension of time is against the law since the law only allows for one Application with distinct prayers. He contended that the memorandum of appeal attached to the Application raises no triable issues. He decried that the two applications have been filed to deny him from enjoying the fruits of his judgment. He claimed that the Applicant was informed of the notice of delivery of Judgment on 14th November, 2023 and that the decree was served upon it’s legal department on 23rd November, 2023 but the applicant failed to take Action.
7. This court directed that this application be canvassed by way of written submissions and directed the parties to file their written submissions. Both parties complied with the same directions.
ISSUES OF DETERMINATION
8. On perusal of the Application, the response thereto and the written submissions of the parties the issues for determination are whether
a) Whether the Applicant is deserving of leave to file appeal against the judgment of the lower court out of time
b) Whether the applicant has met the threshold for grant of stay pending Appeal.
ANALYSIS AND DETERMINATION OF THE ISSUES
Whether the Applicant is deserving of leave to file appeal against the judgment of the lower court out of time
9. Section 79G 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 the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery 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 in time.
10. It is clear from the wording of section 79G of the Civil Procedure Act that before the court considers extension of time, the applicant must satisfy the court that that he has good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited vs William Muthama Kitonyi [2018]eKLR where it was emphasized that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.
11. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR outlined the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-
“The underlying principles a court should consider in exercise of such discretion should include:-
a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. Whether there will be any prejudice suffered by the respondent if the extension is granted;
f. Whether the application has been brought without undue delay.
12. Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:-
“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
13. Applying the above principles to the present case, the judgment herein was delivered on 29th June 2023. The Applicant was granted 30 days stay which expired on 29th July, 2023. However the applicant filed the current application for leave to file the appeal out of time on 8th August 2023. This is about nine (9) days outside the time limited for filing an appeal. The applicant has attributed the delay in filing his appeal the Judgement be delivered in the absence of the parties as well as delay in getting typed proceeding.
14. The Court of Appeal in the case of Ngoso General Contractors Ltd. vs. Jacob Gichunge Civil Appeal No. 248 of 2001 [2005] 1 KLR 737 that:
“The failure by the Superior Court Judge in an application for extension of time to file an appeal, to consider, as a matter of law, whether the Appellant, who was admittedly absent when the Judgement was delivered, was served with notice of delivery of the Judgement was a misdirection…The law under Order 20 r 1 is explicit in terms and mandatory in tone that a Judgement which is not delivered ex tempore must be delivered on a subsequent date only upon notice being given to all parties or their advocates and where only the successful party in the Judgement had prior knowledge of the delivery of the Judgement and no apparent reason was advanced for the failure to serve or to attempt to serve the Appellant or his advocate, the Appellant’s right of appeal was grossly compromised…An order was made by the Magistrate granting a right of appeal within 28 days and directing the party in attendance to inform the other side does not cure the flagrant breach of the mandatory procedural rule which accords with fundamental rules of natural justice and the right to be heard which the Constitution safeguards.”
15. Considering nine (9) days cannot be termed as an inordinate delay. Equally the reasons advanced that the delay was attributable to the court delivering the judgment in the absence of the parties and without notice upon them informing them of such delivery to me is a satisfactory reason. I had a chance to look at the copy of Judgment and truly it was recorded on the face of it by the learned Trial Magistrate that the judgment was to be delivered on 28th June, 2023 but the same date fell on unforeseen holiday .It therefore follows that parties were entitled to a notice of the date of delivery of judgement and no such notice was issued , that omission is a sufficient reason for the purposes of enlargement of time . in any event the applicant moved the court expeditiously for regularization of his position .
.
.
16. As regards the prospects of the appeal succeeding, the question that this court will be called upon is to decide whether in light of the light of evidence the learned trial magistrate erred in law and in fact in awarding the respondent sum of Kshs. 788,716.74 as special damages with interest from the date of filing of the suit and whether she was open for the learned trial magistrate to arrive at a different finding on the amount of as special damages. That, in my view, is an arguable issue to be canvassed in the appeal and cannot be said to be a frivolous one which would only result in the delay of the course of justice .
Whether the applicant has met the threshold for grant of stay pending Appeal.
17. The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:
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.
18. In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 42 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay.
19. I have already deliberated issue of unreasonable delay of filing the application and as such the same is settled. The other consideration relates to whether the Applicant will suffer substantial loss if stay of execution is not granted. The Applicant in his application dated 29th November, 2023 pointed out that advanced the respondent had taken serious step towards the execution process evidenced by a proclamation of attachment of movable property dated 29th November, 2023 together the warrants of attachment of movable property issued 28th November, 2023. The Applicant was thus afraid that it stood to lose it's movable property if stay pending appeal was not granted. These facts have not been challenged by the respondent and no affidavit of means to establish that the respondent is able to refund the decretal sum if paid to him . It is clear that the respondent stands substantial loss. But again this court has to balance the respondent’s right to enjoy the fruits of the judgment and the applicants right of appeal . Applicant has indicated that he is ready and willing to provide security as per the directions of this court. and it is my view that the security should be able to secure the rights of both parties herein.
CONCLUSION
20. In the upshot of the application above this Court in exercise of its discretion and in the interests of justice, grants the Applicant leave to file an Appeal against the Judgment/Decree in Kisii CMCC No. 786 of 2021 out of time as well as Order for stay of execution of the same on the following conditions;
a) That the Applicant shall deposit the entire decretal amount in a joint interest-earning bank account to be held in the joint names of the Counsel for the Applicant and the Respondent within the next thirty (30) days from the date hereof
b) The Applicant is directed to file and served the intended appeal within 14 days from the date of this ruling .
c) The Costs of this Application are awarded to the Respondent
.d) In case of default of Order (a) or (b) above by the Applicant, the orders of stay s herein shall automatically lapse. It is so ordered.
Delivered Virtually Via Teams platform on this 11th day of March 2025 in the presence of :
CA – Oigo
Miss Magoma for applicant
Applicant present in person.
1. Before me for determination is the application dated 29.11.23 2023 seeking stay the execution of the Judgment of Hon. Ocharo (SPM) delivered on 29th June, 2023 in Kisii CMCC No. 786 of 2021 as well leave to file an Appeal out of time, seeking an temporary orders of injunction against the respondent and the auctioneer against attaching and selling the property of the applicant in execution of the decree dated 21.11.23 , lifting the proclamation of attachment of movable property dated 29th November, 2023 together the warrants of attachment of movable property issued 28th November, 2023 pending the hearing and determination of the Application of this application, stay of execution of the judgment pending hearing and determination of this application , enlargement of time to file the intended appeal and that the appeal be filed within 14 days of granting of the said leave among other prayers which have been spent .
2. The Application is based on the grounds raised on their face and the averments in the affidavit sworn by and Lilian Sogo. The Applicant claims that the respondent has a judgment and decree in his favor in Kisii CMCC NO. 786 of 2021 which judgment was delivered on 29th June, 2023 by Hon. C. Ocharo for a sum of Kshs. 788,716.74 in the absence of parties. In the said Judgment an order of 30 days stay of execution was granted which 30 days expired on 29th July, 2023 thus exposing the applicant. The Applicant revealed that said judgment was set to be delivered on 28th June, 2023 but the same date fell on a public holiday which therefore meant the said Judgment was supposed to be delivered after notices had been served to the parties. However the Judgement was delivered in the absence of the parties and no notice of its delivery was given the parties to enable them attend court. The Applicant went on to state that it wrote a letter dated 20th July, 2023 to court through it’s advocate seeking to be supplied with a certified copy of the judgement together with typed proceedings and the same was supplied on the same day.
3. Upon perusal and deliberations on the said judgment, it became apparent to the Applicant that the court took into account matters beyond the scope of the trial issues and thus it instructed its advocate on record to file an application seeking to leave to file an appeal out of time against the judgement given they unable to get typed proceeding in good time. Subsequently, an application dated 8th August, 2023 was lodged in court under certificate of urgency seeking stay of execution of judgment of the trial court and leave to appeal out of time. However, there were no interim orders of stay pending the hearing of application Interpartes that was set for 4th December, 2023. The respondent commenced the execution process and instructed Moco auctioneers to proclamation property of the applicant vide instructions dated 28.11.23 and the auctioneer proceeded to proclaim the property vide proclamation dated 29.11.23 and also took out a warrant for sale dated 28.11.23 . The action of the respondent thus necessitated the filing of the Application dated 29th November, 2023 seeking stay of the said commenced execution .
4. The Applicant contended that the intended Appeal has overwhelming chances of success and it is in the interest of justice to preserve the applicant’s assets pending the hearing and determination of the same. It also contended that unless the orders of stay are granted, it stands to suffer substantial and irreparable loss and that the intended appeal will be rendered a nugatory. It indicated that it was willing to furnish security of the Appeal as per the directions of this court. It underscored also that this applications have been filed timely and interest of justice and fairness the same should be allowed. It was its contention that the respondent will not suffer any prejudice if the orders sought in the application are granted.
5. In response to the Application, the Respondent filed grounds of opposition dated 7th December, 2023 wherein he stated that there was no appeal preferred against the judgment of the lower court since it was delivered on 29th June, 2023. He contended that the Application offended the provisions of order 42 rule 6(2). He also stated that the Applicant was granted a 30 days stay of execution from the date of delivery of judgement which expired on 29th June, 2023 which lapsed on 29th July, 2023 but the Applicant has not demonstrated to this court what steps he undertook towards filing the appeal and thus it not deserving of the grant of an order of stay.
6. He claims that the applicant has not set out grounds to support his application for leave to appeal of out of time to warrant the grant of the same. The Applicant has also contended that the lamping up two application seeking stay and extension of time is against the law since the law only allows for one Application with distinct prayers. He contended that the memorandum of appeal attached to the Application raises no triable issues. He decried that the two applications have been filed to deny him from enjoying the fruits of his judgment. He claimed that the Applicant was informed of the notice of delivery of Judgment on 14th November, 2023 and that the decree was served upon it’s legal department on 23rd November, 2023 but the applicant failed to take Action.
7. This court directed that this application be canvassed by way of written submissions and directed the parties to file their written submissions. Both parties complied with the same directions.
ISSUES OF DETERMINATION
8. On perusal of the Application, the response thereto and the written submissions of the parties the issues for determination are whether
a) Whether the Applicant is deserving of leave to file appeal against the judgment of the lower court out of time
b) Whether the applicant has met the threshold for grant of stay pending Appeal.
ANALYSIS AND DETERMINATION OF THE ISSUES
Whether the Applicant is deserving of leave to file appeal against the judgment of the lower court out of time
9. Section 79G 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 the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery 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 in time.
10. It is clear from the wording of section 79G of the Civil Procedure Act that before the court considers extension of time, the applicant must satisfy the court that that he has good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited vs William Muthama Kitonyi [2018]eKLR where it was emphasized that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.
11. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR outlined the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-
“The underlying principles a court should consider in exercise of such discretion should include:-
a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. Whether there will be any prejudice suffered by the respondent if the extension is granted;
f. Whether the application has been brought without undue delay.
12. Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:-
“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
13. Applying the above principles to the present case, the judgment herein was delivered on 29th June 2023. The Applicant was granted 30 days stay which expired on 29th July, 2023. However the applicant filed the current application for leave to file the appeal out of time on 8th August 2023. This is about nine (9) days outside the time limited for filing an appeal. The applicant has attributed the delay in filing his appeal the Judgement be delivered in the absence of the parties as well as delay in getting typed proceeding.
14. The Court of Appeal in the case of Ngoso General Contractors Ltd. vs. Jacob Gichunge Civil Appeal No. 248 of 2001 [2005] 1 KLR 737 that:
“The failure by the Superior Court Judge in an application for extension of time to file an appeal, to consider, as a matter of law, whether the Appellant, who was admittedly absent when the Judgement was delivered, was served with notice of delivery of the Judgement was a misdirection…The law under Order 20 r 1 is explicit in terms and mandatory in tone that a Judgement which is not delivered ex tempore must be delivered on a subsequent date only upon notice being given to all parties or their advocates and where only the successful party in the Judgement had prior knowledge of the delivery of the Judgement and no apparent reason was advanced for the failure to serve or to attempt to serve the Appellant or his advocate, the Appellant’s right of appeal was grossly compromised…An order was made by the Magistrate granting a right of appeal within 28 days and directing the party in attendance to inform the other side does not cure the flagrant breach of the mandatory procedural rule which accords with fundamental rules of natural justice and the right to be heard which the Constitution safeguards.”
15. Considering nine (9) days cannot be termed as an inordinate delay. Equally the reasons advanced that the delay was attributable to the court delivering the judgment in the absence of the parties and without notice upon them informing them of such delivery to me is a satisfactory reason. I had a chance to look at the copy of Judgment and truly it was recorded on the face of it by the learned Trial Magistrate that the judgment was to be delivered on 28th June, 2023 but the same date fell on unforeseen holiday .It therefore follows that parties were entitled to a notice of the date of delivery of judgement and no such notice was issued , that omission is a sufficient reason for the purposes of enlargement of time . in any event the applicant moved the court expeditiously for regularization of his position .
.
.
16. As regards the prospects of the appeal succeeding, the question that this court will be called upon is to decide whether in light of the light of evidence the learned trial magistrate erred in law and in fact in awarding the respondent sum of Kshs. 788,716.74 as special damages with interest from the date of filing of the suit and whether she was open for the learned trial magistrate to arrive at a different finding on the amount of as special damages. That, in my view, is an arguable issue to be canvassed in the appeal and cannot be said to be a frivolous one which would only result in the delay of the course of justice .
Whether the applicant has met the threshold for grant of stay pending Appeal.
17. The principles guiding the grant of a stay of execution pending appeal are well settled. These principles are provided under Order 42 rule 6(2) of the Civil Procedure Rules which provides as follows:
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.
18. In Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under Order 42 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further the application must be made without unreasonable delay.
19. I have already deliberated issue of unreasonable delay of filing the application and as such the same is settled. The other consideration relates to whether the Applicant will suffer substantial loss if stay of execution is not granted. The Applicant in his application dated 29th November, 2023 pointed out that advanced the respondent had taken serious step towards the execution process evidenced by a proclamation of attachment of movable property dated 29th November, 2023 together the warrants of attachment of movable property issued 28th November, 2023. The Applicant was thus afraid that it stood to lose it's movable property if stay pending appeal was not granted. These facts have not been challenged by the respondent and no affidavit of means to establish that the respondent is able to refund the decretal sum if paid to him . It is clear that the respondent stands substantial loss. But again this court has to balance the respondent’s right to enjoy the fruits of the judgment and the applicants right of appeal . Applicant has indicated that he is ready and willing to provide security as per the directions of this court. and it is my view that the security should be able to secure the rights of both parties herein.
CONCLUSION
20. In the upshot of the application above this Court in exercise of its discretion and in the interests of justice, grants the Applicant leave to file an Appeal against the Judgment/Decree in Kisii CMCC No. 786 of 2021 out of time as well as Order for stay of execution of the same on the following conditions;
a) That the Applicant shall deposit the entire decretal amount in a joint interest-earning bank account to be held in the joint names of the Counsel for the Applicant and the Respondent within the next thirty (30) days from the date hereof
b) The Applicant is directed to file and served the intended appeal within 14 days from the date of this ruling .
c) The Costs of this Application are awarded to the Respondent
.d) In case of default of Order (a) or (b) above by the Applicant, the orders of stay s herein shall automatically lapse. It is so ordered.
Delivered Virtually Via Teams platform on this 11th day of March 2025 in the presence of :
CA – Oigo
Miss Magoma for applicant
Applicant present in person.