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JudgmentNTHIGA M'MBANYA KABEBIA VS VIJINIA WANTHIGA MBITI6 min read

NTHIGA M'MBANYA KABEBIA VS VIJINIA WANTHIGA MBITI

High Court at Embu High Court · · Lucy Njuguna


  1. The applicant has filed a notice of motion dated 27th February 2024, being supported by the grounds set out on the face of the application as well as the facts deposed in the supporting affidavit thereof. The orders sought are as follows:
    1. Spent;
    2. Spent;
    3. That this honourable court be pleased to grant leave to the applicant to file an appeal out of time against the decision of the trial court in Siakago Succession Cause No. 175 of 2017;
    4. That upon granting prayer 3 hereinabove, this honourable court be pleased to issue an order for stay of execution of the ruling in Siakago Succession Cause No. 175 of 2017, pending the filing, hearing and determination of the intended appeal; and
    5. The costs of this application be in the appeal.
  2. The applicant states that following the findings of the trial court in Siakago Succession Cause No. 175 of 2017, he erroneously filed an appeal at the ELC Court ELCA No. 15 of 2023, which appeal was struck out for want of jurisdiction. That he seeks leave to appeal to this court since the time for appeal has already lapsed. He also seeks stay of execution orders pending hearing and determination of the intended appeal in order to preserve the subject matter. The applicant stated that the delay in filing the appeal is not deliberate and he urged the court to excuse him.
  3. The respondent filed a replying affidavit stating that the application is an abuse of the court process as the applicant has not demonstrated that he will suffer loss if the orders are not granted. That the applicant has not given good reasons for delaying in appealing and that the appeal does not raise any arguable issues. He urged the court to dismiss the application.
  4. The court directed parties to file their written submissions but only the respondent complied.
  5. In her submissions, the respondent relied on the case of Nicholas Kiptoo Arap Korir Salat v. Independent Electoral and Boundaries Commission & 7 Others (2014) eKLR and argued that extension of time is an equitable remedy and should only be granted to deserving parties where sufficient reasons have been given. She relied on Order 42 Rule 6 of the Civil Procedure Rules and stated that the intended appeal has no chance of success thus this court is not bound to grant stay of execution.
  6. The issue for determination is whether the application meets the threshold for issuance of orders for stay of execution and leave to appeal out of time.
  7. In considering whether or not to grant stay of execution, the court is expected to look at the circumstances and test them against the provisions of the law before applying its discretion in the matter. On this prayer, I am guided by Order 42 Rule 6(2) of the Civil Procedure Act which provides:

“(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. The applicant has intimated that he intends to challenge the finding of the trial court in the ruling delivered on 26th May 2023.  In the said ruling, the court, inter alia, set aside consent orders and ordered that the register of parcel numbers Evuvori/Nthambu/1778 &1779 be restored to the status obtaining prior to the consent orders which had been set aside. The respondent has challenged the application stating that the orders of the trial court are not executable. I hold a contrary view that the orders are indeed executable hence, stay of execution may be granted once this court is satisfied of the merits thereon.
  2. Execution is a lawful process that may only be stopped by stay orders as was held in the case of James Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR. In tandem with this prayer is the prayer seeking leave to appeal out of time. The applicant stated that he filed an appeal within time but to a court that found itself lacking jurisdiction to entertain the appeal, hence the appeal was struck out.
  3. It is key that the applicant must satisfy the court that the application for leave was brought timeously and without delay, but if there is delay then it is for good reason. They must also demonstrate that if the court does not grant the order sought then the appeal will be rendered nugatory. From perusal of the draft memorandum of appeal, the issues are valid and may be addressed through an appeal.  Section 79G of the Civil Procedure Act as follows:

“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 to the appellant 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 a good and sufficient cause for not filing the appeal in time.”

  1. I have perused Embu ELCA No. E015 of 2023 and found that the applicant indeed filed an appeal therein. The respondent filed a preliminary objection challenging the jurisdiction of the court. Through a ruling delivered on 14th February 2024, that court allowed the preliminary objection. The delay in appealing to this court was as a result of filing in the improper court. It is understandable that errors do occur and the applicant should not be left to suffer due to an error such as this. I find that the delay is excusable
  2. Moreover, Article 48 of the Constitution of Kenya 2010 guarantees every person right of access to justice. Further, Article 50(1) of the Constitution provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. I am therefore inclined to grant the orders only on the strength of the Constitution. I am reminded of the role of the court in administration of justice as stated in the case of Kamuti v Kariuki (Miscellaneous Civil Cause E001 of 2023) (2023) where the court observed that:

“The ultimate goal and purpose of the justice system is to hear and determine disputes fully. It follows that no person who has approached the court seeking an opportunity to ventilate their grievances fully should be locked out unless for a good reason.”

  1. In the end, having considered the application and relevant laws, I find that the application has merit and it is hereby allowed with orders as follows:
    1. The applicant is hereby granted leave to appeal out of time against the Ruling of the court in Siakago Succession Cause No. 175 of 2017 delivered on 26th May 2023;
    2. The memorandum of appeal to be filed within 14 days from the date of this ruling.
    3. Once filed, the appeal to be prosecuted within 120 days from the date of filing.
    4. Execution of the ruling and subsequent orders in Siakago Succession Cause No. 175 of 2017 delivered on 26th May 2023 is hereby stayed pending the hearing and determination of the appeal.
    5. Costs of this application shall abide the outcome of the appeal. 
  2. It is so ordered.

Delivered, dated and signed at Embu this 9th day of October, 2024.


    NTHIGA M'MBANYA KABEBIA VS VIJINIA WANTHIGA MBITI NTHIGA M'MBANYA KABEBIA VS VIJINIA WANTHIGA MBITI