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JudgmentPETER KIMANI MUTHOKA VS THOMAS NZIOKA MUTHOKA10 min read

PETER KIMANI MUTHOKA VS THOMAS NZIOKA MUTHOKA

High Court at Kajiado High Court · · Stella Mutuku

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

MISC. APPLICATION NO E045 OF 2023

PETER KIMANI MBUGUA……………………………………………………..APPLICANT

VERSUS.

THOMAS NZIOKA MUTHOKA……………………………………………..RESPONDENT

RULING

Notice of Motion

  1. The Applicant herein moved this court through Notice of Motion dated 28th March 2023 seeking the following prayers:
  2. Spent.
  3. That the Proposed Appellant be granted leave to appeal out of time against the whole judgment of the Hon. P. Achieng, Senior Principal Magistrate, delivered on 21st October, 2022 at Ngong.
  4. That the Court be pleased to grant stay of execution in Civil Suit No. E192 of 2021 pending the hearing and determination of the appeal against the judgment of Hon. P. Achieng on the 21st October 2022.
  5. That the Memorandum of Appeal annexed hereto be deemed as duly filed and served.
  6. That costs of this application be provided for.
  7. In support of the application the Applicant has explained the circumstances that caused the delay before he could file the appeal within time. It is the case for the Applicant that after the lower court delivered the Ruling in Civil Suit No. E192 of 2021 on 21st October 2022, he instructed his previous advocate to file an appeal against the said judgment and to set aside the judgment but his advocate at the time failed to act on the instructions.
  8. He has stated that he engage another advocate who prepared this application. He has stated that the delay in filing the appeal within time was not intentional but was as a result of the unforeseen omission on the part of his previous advocate. He urged the court not to visit the negligence and the mistake of his previous advocate on him. He states that he has an arguable appeal with high chances of success and that he will suffer substantial loss if this Application is not granted. He stated that he is ready and willing to deposit security of at least a third of the decretal sum or such sum as this court deems fit.

Replying Affidavit

  1. The Application is opposed through a Replying Affidavit sworn by Faith Mutio Muthoka, who has described herself as the advocate for the High Court of Kenya in conduct of this matter, on3rd July 2023. She has deposed that the Applicant filed Notice of Motion application dated10th February 2023 in Ngong CMCC Bi. E192 of 2021 after judgment was delivered seeking stay of execution of the judgment and decree of the court; that the application was heard and dismissed and that the Applicant has the chance of seeking leave to appeal out of time in that application.
  2. It is deposed that the Applicant has come to this court with unclean hands in concealing that he had filed and prosecuted a similar application before the trial court; that the Applicant has not demonstrated sufficient reason for failure to file the appeal on time; that the present application is an afterthought brought to avert the execution process and that the applicant has not satisfied the prerequisite conditions for grant of stay of execution pending the appeal set out in Order 42(6) of the Civil Procedure Rules.
  3. It was deposed, further, that the delay of eight (8) months is inordinate; that the application is defective, scandalous, frivolous and vexatious and amounts to abuse of the court process and ought to be dismissed with costs to the applicant. It is further deposed that should the court grant stay, then there should be condition that the Applicant should pay ¾ of the decretal amount or in the alternative, he should deposit the entire decretal sum in a joint interest earning account in the names of both the Applicant’s and the Respondent’s advocate.

Applicant’s submissions

  1. The Applicant identified the following issues for determination:
  2. Whether the applicant should be granted extension of time to appeal and leave to appeal out of time?
  3. Whether an order of stay of execution pending the appeal should be issued?

Whether the applicant should be granted extension of time to appeal and leave to appeal out of time?

  1. In support of this issue, the Applicant cited Section 79G of the Civil Procedure Act which empowers this court to extend the time within which to file an appeal upon the Applicant satisfying the court that he has good and sufficient cause for not filing the appeal in time. The Applicant also relied on Francis Mwanza Mulwa v Kanji Vaniian & 2 others (2018) eKLR where the court stated that the decision whether or not to grant leave to appeal out of time or to admit an appeal out of time is an exercise of discretion which must be exercised on the bases of evidence and sound legal principles. The Applicant bears the burden of providing the evidence to satisfy the court that he has a good and sufficient cause.
  2. It was submitted that the considerations to be made by the court in granting leave to file an appeal out of time include the period of delay; the reason for the delay; whether the appeal is arguable; and whether the Respondent would suffer any prejudice (see Thuita Mwangi v Kenya Airways Ltd [2003] eKLR).
  3. The Applicant submitted that the judgment in the lower court was delivered on 21st October 2022 and the present application filed on 28th March 2023, a period of four months after the lapse of the 30 days stay of execution granted by the trial court. It was submitted that the delay was occasioned by the Applicant’s former advocate who failed to act on his instructions.
  4. It was submitted that the Applicant has an arguable case and stated that as held in Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & another [2018] eKLR, all the applicant has to show at this stage is arguability of the appeal not high probability of success. It was submitted that the Respondent will not suffer prejudice except to wait a bit longer which can be compensated by an award of costs.

Whether an order for stay of execution pending appeal should be granted?

  1. It was submitted that the decretal sum stands at Kshs 2,744,804 which figure is opposed in the appeal; that executing this figure against the Applicant will be prejudicial before he argues his appeal and that execution will occasion substantial loss to the Applicant. The Applicant relied on authorities including Esther Wanjiru v Jackline Arege [2014] eKLR.
  2. It was submitted that the Applicant is ready and willing to furnish such reasonable security as this court may allow and that the Applicant is willing to use his property Kajiado/Olchoro-Onyore/23045 and 23046 as security.
  3. It was submitted that the this application was filed on 28th March 2023 and that the delay was occasioned by the Applicant’s former lawyer who failed to act on the instructions to file the application immediately.

Respondent’s submissions

  1. The submissions are dated 6th March 2024. The Respondent submitted on the following issues:

Whether the current application is res judicata?

  1. The Respondent submitted that the Applicant filed an application dated 10th February 2023 before the trial court seeking stay of execution and leave to appeal out of time; that the matter was litigated thoroughly and ruling delivered and that the Applicant had a chance to capture the prayer for leave to file appeal out of time but he did not do so. The Respondent urged that this court finds the current application as res judicata. The Respondent cited several authorities to support this issue including Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoit Nyasende [2022] eKLR.

Whether the Applicant has tendered satisfactory explanation for the delay in filing the notice of appeal.

  1. It was submitted that the Applicant has not explained the reason for the 5 month delay in filing the current application; that the delay is inordinate and that the Applicant has been indolent. It was submitted that the Applicant has not annexed proof that he indeed instructed the advocate to appeal; that the Applicant did not explain why he took three months to discover that his advocate has not filed the appeal and that the applicant has not demonstrated sufficient cause to warrant granting of leave to file appeal out of time. It was submitted that the Respondent will suffer prejudice because he will not be able to enjoy the fruits of the judgment and further that the applicant has failed to inform the court that he had filed a similar application which was dismissed.

Whether the Application has met the conditions for grant of stay of execution

  1. It was submitted that the applicant has not demonstrated that he will suffer substantial loss if the application is not granted and that he has excusable delay in bringing the current applicant and that he has not furnished security. The Respondent urged that the application be dismissed with costs.

Analysis and determination

  1. I have considered the Application and the Replying Affidavit in opposition, the submissions by parties and the authorities they have relied on. To my mind, the issues I will be determining are whether the applicant has demonstrated that he deserves the orders he is seeking and whether this application is res judicata.
  2. Section 7 of the Civil Procedure Act states as follows:

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

  1. It was submitted that the Applicant had filed a similar application in the lower court seeking leave to appeal out of time. I have read the application filed before the trial court. The Application being referred to is the Notice of Motion dated 10th February 2023. It sought stay of execution of the judgment and decree dated 21st October 2022 and all subsequent orders pending the hearing and determination of that application and the appeal. It did not seek leave to appeal out of time.
  2. In paragraph 13 of the Supporting Affidavit, it was deponed that: “I request this court to grant me leave to file an appeal out of time and a stay of execution of the judgment dated 21st October 2022 and the decree dated 2nd December 2022 respectively and all the subsequent orders thereto pending the hearing and determination of this application.”
  3. In the Ruling dated 4th May 2023, the trial court stated that “Thought the Defendant/Applicant seeks an order for stay of execution of the judgment and decree pending the hearing and determination of an appeal, it has not been demonstrated that he has already filed the appeal. Though not a prayer on the face of the application, the Defendant/Applicant is seeking leave to file an appeal out of time as per paragraph 13 of his supporting affidavit.”
  4. It is clear to me that the Applicant did not, in the Notice of Motion dated 10th February 2023, seek leave to file appeal out of time. It is in the application itself, and not in the supporting affidavit, that a party lists the prayers he/she is seeking and not in the supporting affidavit or any other affidavit. The trial court appreciated this fact that it is in the Notice of Motion that the Applicant ought to have made a prayer in the application itself. I do not agree with the Respondent that the Applicant sought leave to file appeal out of time. He just mentioned it in his supporting affidavit without prayed for the same.
  5. For the above reason, I take the view that this application is not res judicata. My view is that the applicant did not seek leave to file appeal out of time in his earlier application before the trial court.
  6. The power of the court to extend time fixed for doing of any act is discretionary. Section 95 of the Civil Procedure Act provides that:

Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

  1. The time allowed for filing appeals from subordinate courts to the High Court is 30 days. However, the proviso to that section allows the court to enlarge that time upon the applicant satisfying the Court that he has good and sufficient reasons for not filing the appeal in time. Section 79G of the Civil Procedure Act provides that:

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 good and sufficient cause for not filing the appeal in time.

  1. I have considered the reasons advanced by the applicant for the delay. I have considered the opposition by the Respondent and all the authorities each party has cited to support their case, it is my considered view that I am inclined to grant this application, which I do, on the following terms:
  2. That grant of stay of execution in Civil Suit No. E192 of 2021 pending the hearing and determination of the appeal against the judgment of Hon. P. Achieng on the 21st October 2022 is hereby issued.
  3. That the applicant shall furnish security by depositing half of the decretal sum in a joint interest earning account held in both names of counsel for the Applicant and counsel for the Respondent currently on record within 45 days of this ruling. Failure to comply will lead to automatic lapse of this order for stay.
  4. That the Memorandum of Appeal annexed hereto is deemed as duly filed and served upon payment of filing fees.
  5. The Applicant shall file and serve the Record of Appeal within 45 days from the date of this ruling.
  6. Orders shall issue accordingly.

Dated, signed and delivered this 24th day of January 2025.


    PETER KIMANI MUTHOKA VS THOMAS NZIOKA MUTHOKA PETER KIMANI MUTHOKA VS THOMAS NZIOKA MUTHOKA