Introduction
1. Before this court is a notice of motion application dated 11th December 2023 brought under section 1A, 1B, 3A and 79G of the Civil Procedure Act, Order 51 Rule 1 and Order 42 Rule 6 of the Civil Procedure Rules.
2. The application seeks leave to file an appeal out of time against the judgment of Hon Biwott (SPM) in Kabarnet ELC No. 16 of 2017; an order of stay of execution of the judgement and decree stopping eviction of the applicant from parcel No. Baringo /Kewamoi ‘A’/2088 (herein after referred to as the suit property) pending the hearing and determination of the intended appeal; costs be in the cause.
3. The application is premised on the grounds on its face and is supported by the affidavit of Zipporah Kobilo Kandie sworn on 11th December 2023. She deposes that she was issued with a certified copy of judgment 30 days after delivery of the judgement, thus causing delay in filing the Memorandum of Appeal; that she is an elderly lady who has suffered as a result of the broken relationship between her and her former advocate after he applied to cease acting for her; that the intended appeal has high chances of success as the judgment rendered by the trial court was perverse; that she is at risk of being evicted from the suit property and will suffer irreparable and irreversible harm.
4. In response to the application, the respondent’s advocates, Kiplenge Andama Makau, filed grounds of opposition dated 15th April 2024 that the application is frivolous and an abuse of the court process; that the applicant is forum shopping and buying time having failed to participate in the matter before the lower court; that the applicant filed the application after one year; that the application is aimed at stalling the eviction process to deny the respondent the fruits of his judgment and that there are active eviction orders against the applicant. It is their case that the applicant is indolent and the application should either be dismissed or struck out with costs to the respondent.
5. Upon consent of the parties, the application was disposed off by way of written submissions.
Applicant’s submissions
6. In her submissions dated 15th May 2024, the applicant restated the orders sought in the application and cast aspersions on the respondent’s representation by stating that his advocates are improperly on record. She framed the issues for determination as follows;
a) Whether the applicant has met the threshold to be granted leave to file an appeal out of time.
b) Whether the orders sought for stay of execution are merited in the circumstances of the case.
7. On whether the applicant has met the threshold to be granted leave to file an appeal out of time, she submitted that she has demonstrated that failure to file the appeal was caused by reasons beyond her control. She relied on the case of Charles Karanja Kiiru v Charles Githinji Muigwa (2017) Eklr.
8. She further submitted that whereas its true that this application has been filed more than one year after delivery of the judgement, being an elderly litigant, she should not be blamed for the actions of her former advocate; that she is not negligent or indolent. On what constitutes reasonable delay, she relied on the case of Paul Wanjohi Mathenge v Duncan Gichane Mathenge (2013) Eklr.
9. On whether she has an arguable appeal, she relied on the case of George Boniface Mbugua v Mohamed Jawayd Iqbal (personal representative of the estate of the late Ghulam Rasool Junmohamed) 2021 Eklr and submitted that her appeal is arguable. She called upon the court to afford her an opportunity to ventilate it through an appeal and urged the court to hold the ring evenly without prejudicing any party.
10. On whether the order for stay of execution is merited, she submitted that it is necessary to facilitate all parties to take up their claims to the appellate court; that if the applicant is not heard, she stands to suffer irreparable harm if judgment is executed and the land sold, transferred or charged rendering the appeal an academic exercise and moot. To buttress her point, she cited the case of Housing Finance Company of Kenya v Sharon Kher Mohamed Ali Hirji & another (2015) Eklr.
11. Finally, she submitted that the respondent’s grounds of opposition are fatally defective having being filed by a firm of advocates who are not properly on record; that no notice of appointment or notice of change of advocate was filed and served by the firm of Kiplenge, Andama & Makau Advocates. Further, that the grounds of opposition are meritless and disjointed as the applicant has never filed any application to reinstate the suit. It is her prayer that the application be allowed and the grounds of opposition be struck out in limine.
Respondent’s submissions.
12. The respondent submitted that time within which an appeal should be filed has since lapsed. It is the respondent’s contention that the applicant had filed a similar application dated 18th October, 2023 which sought to set aside the judgment of the trial court and reopen the case for hearing but the same was dismissed in February 2024; that the current application is an afterthought having been filed during the pendency of the former application; that no evidence has been attached showing that the certified copy of judgment was issued 30 days after delivery of the judgement hence causing the delay. It is his case that the applicant has not shown willingness to provide security for costs for due performance of the decree and has therefore not satisfied the elements for enlargement of time under the law.
13. The respondent framed the following as the issues for the court’s determination;
a) Whether the applicant has met the threshold for leave to appeal out of time?
c) Whether the applicant has met the threshold for stay of execution pending appeal.
14. On whether the applicant has met the threshold to be granted leave to appeal out of time, the respondent submitted that extension of time must be exercised within established principles that is, length of delay, reason for delay, chances of the appeal succeeding and the degree of prejudice to the respondent if the application is granted.
15. He submitted that no evidence of attempts to obtain the certified copy of the judgment has been shown. There is therefore, no valid excuse for the delay and the reason given is not satisfactory. It is his case that the delay of over 1 year demonstrates indolence and disinterest on the part of the applicant.
16. On chances of the appeal succeeding, it is the respondent’s contention that the applicant has raised issues in the draft memorandum of appeal that are misleading and not triable. It is his case that the applicant never participated in the trial court and the current application is only a delay ploy which this court should not entertain. The respondent relied on the cases of Omar Shurie v Marian Rashe Yafar Civil Application No.107 of 2020, Susan Ogutu Oloo & 2 others v Doris Odindo Omolo (2019) Eklr, and London Distillers K Ltd v Philip Kipchirchir & 2 others (2007) Eklr to highlight the principles on extension of time.
17. On whether the applicant has met the threshold for stay of execution pending appeal, he submitted that the applicant has not met the principles as provided under Order 42 Rule 6(2) of the Civil Procedure Rules.
18. On substantial loss, he submitted that the applicant has not demonstrated the loss she will suffer. The respondent contends that he stands to suffer loss as he will be unfairly disallowed from enjoying the fruits of his judgment. As it stands, the applicant continues to use the respondent’s land gaining profit whilst the respondent remains in the cold. It is submitted, that the applicant has not provided security for costs or demonstrated willingness to do so. Reliance was placed on the case of Vista Holdings International Limited v Span Image (K) Limited (2014) Eklr 988
Analysis and determination.
19. After carefully considering the application, the grounds, response and submissions thereto, I find the issues for determination to be;
a) Whether the respondent’s advocates are properly on record?
b) Whether the applicant has met the threshold to be granted leave to appeal out of time?
c) Whether the applicant has met the threshold for stay of execution pending appeal?
20. On whether the respondent’s advocates are properly on record, the court record shows that the plaintiff was represented by the firm of Kiplenge & Kurgat in the trial court on whom the instant application was served. ln response to the application, the respondent filed grounds of opposition through the firm of Kiplenge, Andama, Makau Advocates.
21. The law on Legal representation by an advocate is provided for under Order 9 of the Civil Procedure Rules. Order 9 rule 9 provides;
“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—
(a)upon an application with notice to all the parties; or
(b) upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”
22. The court record does not contain any consent order filed between the outgoing and incoming advocates for the respondent. There is also no application for change of advocates nor is there a notice of change of name by his former advocates. In the absence of a consent order between the two firms of advocates, an application for change of advocates with notice to all parties and/ or notice of change of name by the firm of Kiplenge & Kurgat Advocates to Kiplenge, Andama & Makau Advocates , I find the firm of Kiplenge, Andama & Makau Advocates not to be properly on record.
23. Consequently, l expunge the grounds of opposition dated 15th April 2024 and submissions dated 4th June 2024 from the court record as this court has no jurisdiction to preside over proceedings filed by a counsel who lacks locus standi. I am guided by the persuasive case of Jackline Wakesho v Aroma Café (2014) e KLR cited in the case of John Michuki Gitau v Mary Njeri Githinji & another (2022) e KLR where the court held;
“…This Court finds that the default by the Applicant goes to the jurisdiction of the Court to entertain the motion. The reason for the foregoing reasoning is that the Court has no jurisdiction to preside over incompetent proceedings filed by counsel who lack locus standi. The Court has been asked to invoke the oxygen principle under Section 1A and 1B of the Civil Procedure Act and entertain the Motion. The Court will not however do that. The reason for the foregoing is twofold. Firstly, there are several judicial pronouncements cited by the claimant which show that Courts have over the time declined to entertain proceedings filed by new advocates appointed after judgment without complying with Order 9 rule 9….”
24. Although as it stands, the application is unopposed, it is not automatic that for any unopposed application, the court will as a matter of cause grant the sought orders. It behooves the court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted.
25. Section 79G of the Civil Procedure Act provides that appeals from the subordinate courts to the High court must be filed within 30 days from the date of decree or order from which the appeal lies. Where there has been a delay, time may be extended to file the appeal where good and sufficient cause has been shown. The provisions of Section 79G of the Civil Procedure Act are replicated in Section 16A of the Environment and Land Court Act.
26. Olao J in the case of Peter Maosa Nyang’au v National Bank of Kenya Ltd & another [2021] eKLR stated;
‘It is clear from both Section 16A of the Environment and Land Court Act and Section 79G of the Civil Procedure Act that the Judgment sought to be appealed having been delivered on 6th October 2020, the Applicant had upto 6th November 2020 to file his appeal against that Judgment i.e. 30 days. The 30 days’ period can however be extended by the Court where the Applicant “satisfies the Court that he had good and sufficient cause for not filing the appeal in good time.” The Court of Appeal in the case of THE HON ATTORNEY – GENERAL.V. THE LAW SOCIETY OF KENYA & ANOTHER C.A CIVIL APPLICATION N0 133 of 2011 said as follows with regard to the meaning of sufficient cause: -
“Sufficient cause or good cause in law means –
‘The burden placed on a litigant (usually by Court rule or order) to show why a request should be granted or an action excused’ see BLACK’S LAW DICTIONARY 9TH EDITION page 251.’ Sufficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubt in a Judge’s mind. The explanation should not leave unexplained gaps in the sequence of events” Emphasis mine.
There is no difference between the words sufficient cause and good cause – QURESHI & ANOTHER.V. PATEL & OTHERS 1964 EALR 633. The Supreme Court of Kenya laid down the following principals that should guide a Court considering an application for extensions of time within which to appeal in the case of NICHOLAS KIPTOO arap KORIR SALAT.V. 1.E.B.C & OTHERS 2014 eKLR: -
a. Extension of time is not a right. 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 it’s discretion to extend time is a consideration to be made on a case to case basis.
d. Where there is a reason for delay, it should be explained to the satisfaction of the Court.
e. Whether there will be any prejudice suffered by the Respondent if extension is granted.
f. Whether the application has been brought without delay.
g. Whether in certain cases like election Petitions, public interest should be a consideration for extending time.
Therefore, extension of time is never granted as a matter of cause. It is not automatic. It is not served at the pleasure of the Applicant or on the basis of sympathy. And although it is discretionary, it is an equitable remedy to be granted on good and sufficient cause. That means that where there is evidence of mala – fides, an attempt to overreach or simply in – action on the part of the Applicant, that remedy will be denied.’’
27. In the case before the court, the applicant in an attempt to demonstrate that she has good and sufficient cause, has placed the blame on the trial court for availing to her the typed judgement 30 days after delivery of the judgement therefore denying her an opportunity to file the appeal on time. She has also stated that she is an elderly lady who should not be blamed for mistakes of her previous advocate who stopped representing her after judgement was delivered.
28. I have taken the liberty to peruse the lower court file and made the following observations; First, there is no evidence of any attempt by the applicant’s former advocates, herself or her current advocates to obtain a copy of the typed judgement. Secondly, after delivery of the judgement on 28th June 2022, the applicant was granted stay of execution for 30 days. The applicant did not file an appeal although she was aware of the judgement. This is evidenced by her advocate’s remarks when he attended court on 30th March 2023;
“I used to represent the defendant and after judgement she withdrew her instructions from me. My colleague applied for execution and served me. In an application for execution, there is need to serve the defendant personally because execution affect the defendant….……...I do not have instructions from the defendant though I am still on record…. It would be irregular for my colleague to proceed ……’’
29. About five months after delivery of the judgement, the respondent filed the application dated 10th November 2022 seeking an order that the officer commanding station (OCS) Kabarnet police station be allowed to enforce the eviction notice against the applicant. Despite the applicant being personally served with the application and attending court on 25th July 2023, she did not defend the application and the same which was allowed on 12th October 2023. This prompted her to engage the firm of Arusei & Company Advocates who filed the application dated 18th October 2023 to set aside the proceedings of 12th October 2023. Vide a ruling delivered on 8th February 2024, the aforesaid application was dismissed with costs. During the pendency of the aforesaid application, the applicant, filed the instant motion.
30. The actions of the applicant paint a picture of a person who is negligent, indolent and has lost interest in the case. For more than one year, the applicant sat back and did nothing. She did not even defend the application seeking to enforce the eviction notice against her. It is only after she realised she was on the verge of being evicted that she decided to challenge the eviction. In the circimstances of this case, it is my considered veiw that the applicant has failed to show sufficient cause to enable this court exercise discretion in her favour. The court has also noted the delay of close to one and a half years in filing the instant application with no satisfactory explanation given for the delay. Further, the respondent has judgement in his favour but cannot enjoy fruits of the judgement because the applicant is still in occupation of the suit property.
31. The result of all the above, is that the application for leave to appeal is found to be without merit and is for dismissal.
32. Having dismissed the prayer for leave to appeal, there can be no justification for making any orders for stay of execution pending appeal. However, for purposes of completeness, I will address that prayer albeit briefly.
33. Order 42 Rule 6(2) of the Civil Procedure Rules sets down the conditions courts should consider before granting stay of execution pending appeal. It provides inter alia-:
(2) No order for stay of execution shall be made under sub rule (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.”
34. To demonstrate that she will suffer substantial loss, the applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal.
35. The applicant filed the application dated 18th October 2023, seeking to set aside the proceedings of 12th October 2023. The order sought to be set aside was an order allowing the OCS Kabarnet police station to enforce the eviction notice against the applicant. The application was dismissed with costs on 8th February 2024.
36. The instant application seeks an order of stay of execution of the judgement and decree stopping eviction of the applicant from parcel No. Baringo/ Kewamoi ‘A’/2088 pending the hearing and determination of the intended appeal. The orders sought in this application are similar to those sought in the application dated 18th October 2023 which was dismissed. The instant application is Res judicata the application dated 18th October 2023 where the court declined to interfere with the orders granted earlier to enforce the eviction notice against the applicant. The applicant is attempting to appeal that ruling through the back door.
37. There is also inordinate delay in filing the application, the applicant having moved this Court more than one and a half years after judgment was delivered. Finally, the applicant has not offered any security for costs.
38. The totality of all the above is that even if leave to appeal would have been granted, the applicant would not have met the threshold for the grant of an order of stay of execution of the judgment pending appeal. That prayer is also for dismissal.
39. The upshot of foregoing is that the application dated 11th December 2023 is devoid of merit and l dismiss it with costs to the respondent.
40. Orders accordingly.
Dated, signed and delivered at Kabarnet this 7th day of August 2024.
Ruling read electronically in the presence of;-
Ms. Kiget for the applicant
N/A for the respondent
Court Assistant: lan