Introduction
1. This ruling is in respect of the notice of motion dated 28th February 2024 brought under Section 3 and 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 51 of the Civil Procedure Rules.
2. The appellant/applicant seeks an order of stay of execution of the judgment delivered on 25th January 2024 and decree in Eldama Ravine Principal Magistrate’s Court ELC No. 27 of 2021 pending the hearing and determination of the application and the appeal.
3. The application is premised on the grounds on its face and the applicant’s supporting affidavit sworn on 28th February 2024. He deposes that he is the registered owner of Lembus/Kabonyoy/Moringwo/994 (herein after referred to as the suit property); that he was aggrieved with the judgment and lodged an appeal; that he is yet to receive copies of the judgment and proceedings from the trial court; that he has an arguable appeal and unless the orders sought are granted, the suit property risks being disposed of rendering the appeal nugatory in case it is successful. He urges the court to grant an order of status quo to preserve the suit property pending the hearing and determination of the appeal as no party will suffer any prejudice.
4. In opposition, the respondent filed a notice of preliminary objection and replying affidavit both dated 7th March 2024.
5. The notice of preliminary objection is based on the ground that the appeal offends the provisions of Section 79G of the Civil Procedure Act and ought to be dismissed.
6. In her replying affidavit, the respondent avers that the appeal raises no arguable grounds and is bad in law; that although she has been in possession of the suit property since 2010, she is yet to be issued with a title deed as ordered by the court which has greatly prejudiced her as she has nothing to use as collateral to secure a loan from financial institutions.
7. The application was disposed off by written submissions.
Appellant/Applicant’s submissions
8. In his submissions dated 28th March 2024, the appellant/applicant submitted that the preliminary objection was a waste of court’s time aimed at delaying prosecution of the appeal. It is his contention that he filed his appeal within time as provided for under Section 79G of the Civil Procedure Act; that because the last day of filing his memorandum of appeal fell on Sunday 25th February 2024, he filed it the following day which was an official working day in accordance with Section 57 of the Interpretation and General Provisions Act and Order 50 (3) of the Civil Procedure Rules.
9. He further submitted that he had met the requirements under Order 42 Rule 6(2) of the Civil Procedure Rules for being granted an order of stay of execution; that if execution takes place and the suit property is transferred before the appeal is heard and determined, he stands to suffer substantial loss as a bonafide purchaser who paid for the land and was issued with a title deed. He urges the court to preserve the subject matter and maintain status quo. He relied on the cases of Nicholas Okaka & Another v Alfred Waga Wesonga (2022) e KLR, RWW V EKW (2019) e KLR and Butt V. Rent Restriction (1982) cited in the case of Francis K Chabari & Another V Mwarania Gaichura Kairubi (2022) eklr.
10. Guided by the decision of Joseph Kariuki Mwaniki V Daniel Migwi Kangangi 2021 e KLR, the applicant submitted that the application was made without unreasonable delay despite not having been supplied with proceedings from the trial court. On security for costs, he submitted that he is willing to abide by any terms set by the court.
Respondent’s submissions
11. In her submissions dated 18th March 2024, the respondent submitted that the appeal is incompetent having been filed out of time without leave of the court contrary to the provisions of Section 79G of the Civil Procedure Act. It is her case that computation of time under Order 50 of the civil procedure rules cannot override the provisions set out in the statute and as such the appeal must be struck out with costs.
12. She further submitted that the appellant/applicant has not fulfilled the requirements under Order 42 Rule 6 (2) of the Civil Procedure Rules and relied on the cases of Hamisi Juma Mbaya v Asman Amakecho Mbaya (2018) e KLR. It is her contention that because the application is not accompanied by a copy of the judgment and decree contrary to Order 42 Rule 2 of the Civil Procedure Rules, it should be dismissed as it lacks merit.
Analysis and Determination.
13. I have carefully read and considered the application, the grounds, the affidavits for and against, the submissions filed herein, the law applicable and I find the issues which call for the court’s determination include:
i. Whether the preliminary objection should be sustained.
ii. Whether failure to attach the judgment/ decree or order is fatal to this application
iii. Whether the appellant/applicant has made up a case for being granted the orders sought.
14. Section 79G of the Civil Procedure Act provides:
“Every appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against excluding from such period anytime which the lower court may certify as having been requisite for 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 good and sufficient cause for not filing the appeal."
15. Section 57 of the Interpretation and General Provisions Act on computation of time provides;
“In computing time for the purposes of a written law, unless the contrary intention appears—
(a) a period of days from the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;
(b) if the last day of the period is Sunday or a public holiday or all official non-working days (which days are in this section referred to as excluded days), the period shall include the next following day, not being an excluded day……. ’’
16. Order 50 Rule 3 of the Civil Procedure Rules provides;
‘Where the time for doing any act or taking any proceeding expires on a Sunday or other day on which the offices are closed, and by reason thereof, such act or proceeding cannot be done, or taken on that day, such act or proceeding shall so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next be open.’’
17. In the instant case, judgment was delivered on 25th January 2024. The appellant/ applicant filed his memorandum of appeal on Monday 26th February 2024. Under Section 57 (a) of the Interpretation and General Provisions Act, time starts running a day after the event occurred. In this case, judgement was delivered on 26th January 2024. Thirty days ended on 24th of February 2024 which was a Saturday (an excluded day). The next working day was Monday 26th February 2024 which is the date the memorandum of appeal was filed.
18. In the case of Masumbuko Mohamed Omar v Gunda Benedict Fondo & 2 others (2008) Eklr, the court held as follows: -
“… the 28th day fell on a Sunday, as it did, or on a day which was a public holiday, then the deadline automatically stood extended to the next following day. And if that next day were itself to be declared a public holiday, then the two day moratorium alleged by Mr. Gikandi would certainly have applied. In other words, the extension of time occurs if and when the last day for the doing of any act or thing falls on a Sunday or a public holiday or an official non-working day. It does not operate in the reverse when it is the first day for the doing of the act or thing which falls on an excluded day…”
19. In applying the Law and the cited authority to the circumstances of this case, this court finds that the applicant filed his appeal within time and therefore the preliminary objection fails.
20. On whether failure to attach a copy of the judgement and decree renders the appellant/applicant’s application fatally defective; from the memorandum of appeal, affidavits and submissions of both parties, the court is able to infer that judgement was delivered in favour of the respondent and the applicant was ordered to transfer a portion of the suit property in 90 days. Whilst it is a requirement that a copy of the judgement and decree should form part of the annexures, it is my considered view that failure to do so does not mean that the court should shut the door of justice to such a litigant. However, this is not meant to encourage such omissions among litigants but is aimed at ensuring that justice is done by not dismissing an application for want of form or failure to follow procedure. For the above reason, l return a negative verdict on the second issue.
21. On whether the applicant has met the conditions to warrant issuance of an order of stay of execution; namely, whether he has established substantial loss; whether his application was brought promptly and whether he has offered security for costs, I find that the appellant/applicant stands to suffer substantial loss if an order of stay is not granted as there is danger that a portion of the suit property may be transferred as ordered by the court thus interfering with the title deed registered in his name. Under the circumstances, there is need to preserve the suit property by maintaining status quo as failure to do so may render the appeal nugatory. On whether the application was brought within reasonable time, I find that judgment was delivered on 25th January 2024 and the application was filed on 28th February 2024 34 days later, which period is not inordinate. On security for costs, although the appellant/ applicant has not offered any security for costs, he has expressed willingness to abide by any terms set by the court.
22. Being of the view that justice will be served by balancing the appellant/applicant’s right of appeal against the respondent’s right to enjoy the fruits of her judgment, I am inclined to allow prayer (c) of the appellant/applicant’s application dated 28th February 2024 on the following conditions: -
1. The appellant/applicant shall, within 21 days from the
date of delivery of this ruling, deposit in court Kshs.150, 000/- as security for costs and file a record of appeal.
2. With the help of the Deputy Registrar, the applicant is directed to ensure that the appeal is heard and determined within 90 days from the date of this ruling failing which the application shall automatically stand dismissed with costs to the respondent or unless further orders are issued by this court.
3. Costs of the application to abide the outcome of the appeal.
23. Orders accordingly.
Dated, signed and delivered at Kabarnet this 23rd day of July, 2024.
Ruling read electronically in the presence of;-
Mr. Tarigo for the Appellant/Applicant
Mr. Sirma holding brief for Mr. Kemboi for the Respondent
Court Assistant: Ian