RULING
1. The application for determination is dated 28/02/2024. It is brought under certificate of urgency and Sections 3A of the Civil Procedure Act (CPA) Cap 21 Laws of Kenya, Rule 5(2)(b) of the Court of Appeal Rules, Order 51 Rule 1 & 3, Order 42 Rule (6) of the Civil Procedure Rules 2010 and all other enabling provisions of the law, seeking the following orders;
a) Spent.
b) THAT there be a stay of execution of the of the judgment delivered herein on 31/10/2023 in Makueni Civil Suit No. 76 of 2020 and the consequent decree thereon pending the hearing and determination of this application.
c) THAT the costs be in the cause
2. The application is supported by the grounds on its face and the 1st Applicant’s Affidavit sworn on the same day. He deponed that the trial court awarded a sum of Kshs 3,192,720/= together with costs and interest and the 30 days stay of execution issued has since lapsed. That the Respondent can execute at any time and render the appeal nugatory. That he was aggrieved by the judgment and filed an appeal. The judgment and memorandum of appeal are exhibited as RWM 1 & 2 respectively.
3. He deponed that the deceased’s estate means of income are not known and it is therefore in doubt as to whether it would be able to refund the decretal sum if the appeal succeeds. He deponed that they are ready, able and willing to comply with the directions of this court as regards any conditions for securing the stay of execution. That the respondents will not be prejudiced in any manner and they (appellants) have committed to do all within their power to ensure that the appeal is heard and determined within the shortest time possible.
4. The application is opposed on the following grounds dated 14/03/2024;
a) That the intended Appellants/Applicants have not properly moved this honorable court.
b) That this honorable court lacks jurisdiction to hear and determine the intended appeal.
c) That the Appellants/Applicants have not established any reasonable cause for the delay in filing the intended appeal.
d) That there is no demonstration for deposit of the decretal sum to the tune of kshs 3,192,720/= together with costs and interest to this honorable court.
5. The application was canvassed through written submissions.
6. They The Applicants identified the issues for determination to be;
a) Whether this honorable court has jurisdiction to hear and determine the intended appeal.
b) Whether this appeal was filed out of time.
c) Whether the application for stay should be allowed.
7. On the first issue, they relied on Article 165 of the Constitution and section 65 of the CPA for the submission that this matter was previously before the magistrate’s court at Makueni hence the appellate court is the High Court at Makueni.
8. As to whether the appeal was filed out of time, they submitted that the impugned judgment was delivered on 31/10/2023 and the memorandum of appeal was received by the court on 30/11/2023. They relied on Paul Njagi Njeru -vs- Karija K. Mugambi (2021) eKLR where the court stated;
“The court takes the learning that the timeline of filing a memorandum of appeal is different from the timeline of filing a record of appeal. Filing a memorandum of appeal does not require the filing of typed and certified proceedings. An advocate may peruse the judgment and craft grounds of appeal which can be amended later…nothing stopped the appellant from filing a memorandum of appeal from the stipulated 30 days and if need be, upon the receipt of the typed proceedings, apply to make amendments.”
9. As to whether the application for stay should be allowed, they relied on Article 165 of the Constitution, Order 42 of the Civil Procedure Rules and Ena Investment Ltd -vs- Benard Ochau Mose & 2 Others [2022] eKLR for the submission that the requirement for granting stay are; establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security.
10. They submitted that they will suffer substantial loss because the respondent will not be able to refund the decretal sum if the appeal succeeds. They relied inter alia on National Industrial Credit Bank Ltd -vs- Aquinas Francis Wasike & another [2006] eKLR where the Court of Appeal stated;
“This Court has said before and it would bear repeating that while the legal duty is on an applicant to prove the allegation that an appeal would be rendered nugatory because a respondent would be unable to pay back the decretal sum, it is unreasonable to expect such an applicant to know in detail the resources owned by a respondent or the lack of them. Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge.”
11. They also cited Butt -vs- Rent Restrictions Tribunal 1982 KLR 417 where it was held that;
“The general principle in granting or refusing a stay is that if there is no other overwhelming hindrance a stay must be granted so that an appeal may not be rendered nugatory should the decision be reversed.”
12. They submitted that their memorandum of appeal raises triable issues and relied on Job Kilach -vs- Nation Media Group & 2 Others (2015) eKLR where the court stated;
“….a bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial…it therefore does not need to be an issue that would succeed, just one that warrants further intervention by the court.”
13. Further, they submitted that they are ready, able and willing to comply with the court’s directions with regard to security.
14. The Respondents identified the issues for determination to be;
a) Whether the applicants ought to have sought leave to appeal before the trial court.
b) Whether the applicants have established any reasonable cause in the delay in filing the intended appeal.
c) Whether there is demonstration from the applicants for deposit of the decretal sum.
d) Whether the memorandum of appeal should be struck out.
15. Referring on section 75 of the CPA and Order 43 of the CPR, they submitted that there are orders in respect of which an appeal lies as of right and there are orders where leave to appeal is required. They relied on Mbaraka Suleiman Mbwana -vs- Nasoro Bakari Nguta & another [2021] eKLR where the court stated;
“29. In the present application, the applicants seek leave of this Court to lodge a memorandum of appeal out of time against the ruling that was delivered on 5th November, 2020 by the Senior Resident Magistrate Hon. S. A. Ogot in CMCC No. 37 of 2020 at Msambweni Law Courts. It is noteworthy that the present application is not one for leave to appeal which in any event should have been made before the Court that made the order which the applicants seek to appeal against. There is also no evidence of whether the applicants obtained the requisite leave to appeal as provided under Order 43 Rule 1 sub-rules 2 and 3 of the Civil Procedure Rules and under Section 75 of the Civil Procedure Act.”
30. That the applicants’ application is therefore destined to fail for the reasons outlined above.
16. They submitted that the applicants have failed to demonstrate sufficient reasons for the delay and that the degree of prejudice to be suffered is high considering that there are four minors to be taken care of.
17. On security they submitted that no security has been offered and relied on Mwaura Karuga t/a Limit Enterprises -vs- Kenya Bus Services Ltd & 4 others [2015] eKLR where the court stated;
“..the security must be one which shall achieve due performance of the decree which might ultimately be binding on the applicant. The rule does not, therefore, envisage just any security. The words ‘’ultimately be binding’ are deliberately used and are useful here, for they refer to the entire decree as will be payable at the time the appeal is lost. That is the presumption of law here. Therefore, the ultimate decree envisaged under order 42 rule 6 (2) (b) of the Civil Procedure Rules includes costs and interest on the judgment sum unless the latter two were not granted-which is seldom. The security to be given is measured on that yardstick.”
18. As to whether the memorandum of appeal should be struck out, they cited Stephen Nyasani Menge -vs- Rispah Onsase [2018] eKLR where the court stated;
“Where leave to appeal is a pre-requisite before an appeal can be lodged, failure to seek and obtain the leave is fatal and consequently no competent appeal can be lodged against such an order.”
19. They submitted that litigation must come to an end and allowing the application will prolong the matter contrary to the overriding objectives of the Civil Procedure Act and the judicial process as a whole. They relied on Letambul -vs- County Government of Samburu & another (Cause E038 of 2022) [2023] KEELRC 2127 (KLR) (22 September 2023) where the court stated;
“the wider interest of justice is in dismissing the application herein because allowing it would be contrary to the public policy and interest that litigation must come to an end after judgment. Hearing should not be reopened every time an indolent or a party who deliberately ignores court process, screams to the court “wider interest of justice” or “have a good defence with triable issues”. Consequently, I find no merits in the notice of motion dated March 2, 2023 and hereby dismiss it with costs.”
20. They urged the court to dismiss the application.
21. I have considered the application, the response and rival submissions, the following issues arise for determination;
a. Whether the appeal was filed on time.
b. Whether stay of execution should be granted
Analysis and Determination
Whether the appeal was filed on time
22. According to section 79G of the Civil Procedure Act; ‘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...’
23. The trial court delivered its judgment on 31/10/2023 and the memorandum of appeal was filed on 30/11/2023. Evidently, the appeal was filed within time. The Record of Appeal was filed in May 2024 but that is not an issue as can be seen from Order 42 Rule 13 of the Civil Procedure Rules which states;
Directions before hearing [Order 42, rule 13.]
(1) Upon notice to the parties delivered not less than twenty-one days after the date of service of the memorandum of appeal the registrar shall cause the appeal to be listed for the giving of directions by a judge in chambers.
(2) Any objection to the jurisdiction of the appellate court shall be raised before the judge before he gives directions under this rule.
(3) The judge in chambers may give directions concerning the appeal generally and in particular directions as to the manner in which the evidence and exhibits presented to the court below shall be put before the appellate court and as to the typing of any record or part thereof and any exhibits or other necessary documents and the payment of the costs of such typing whether in advance or otherwise.
(4) Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say—
(a) the memorandum of appeal;
(b) the pleadings;
(c) the notes of the trial magistrate made at the hearing;
(d) the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;
(e) all affidavits, maps and other documents whatsoever put in evidence before the magistrate;
(f) the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal:
24. From this provision is that a Record of Appeal can always be filed later after service of the Memorandum of Appeal and before the appeal is listed for directions.
Whether stay of execution should be granted
26. Order 42 Rule 6 of the Civil Procedure Rules, provides the conditions upon which stay pending appeal will be granted; whether substantial loss will occur if stay is not granted, whether the application has been filed without unreasonable delay and furnishing security for the due performance of the decree.
27. Judgment in the case appealed from was delivered on 30/10/2023 and this application was filed on 28/02/2024, about three months later. The applicants did not even attempt to explain the delay and it is trite that even a delay of one day should be explained.
28. As for substantial loss, the applicants are apprehensive that if the decretal amount is released to the respondents, they will be unable to recover the same if the appeal succeeds. From the exhibited judgment, the appellants were found to be 100% liable and the damages awarded were; kshs 100,000 for pain and suffering, kshs 120,000/= for loss of expectation of life, kshs 2,760,200/= for loss of dependency and kshs 174,325 for special damages.
29. The Memorandum of Appeal shows that the appeal is on both liability and quantum. Information about respondent’s means is exclusively within their possession and without an affidavit of means, there is no evidence of their ability to refund the decretal sum if the appeal succeeds. It is possible that substantial loss could occur.
30. As for security, they deponed that they are ready, able and willing to comply with the directions of this court.
31. The applicant fails to explain the delay in filing the application.
32. There is also the glaring absence of a prayer seeking stay of execution of the judgment/decree pending the hearing and determination of the Appeal. A party is bound by its pleadings and cannot be granted prayers a party has not sought.
33. In the circumstances the application is untenable and is dismissed with costs .
Dated, signed and delivered via CTS on 18th October 2024
Mumbua T Matheka
Judge
CA Nelima/Elizabeth
Appellants’ Advocates
Kibatia & Co. Advocates
info@kibatiaadvocates.com
Respondents’ Advocates
C.K Kioko & Co. Advocates
ckadvocates311@gmail.com