Case ID:168202

Obadiah Musyimi Mulwa & 2 others v Francis Kimegho Ngala [2020] eKLR

Case Metadata

Case Number:

Miscellaneous Application E434 of 2020

Parties:

Obadiah Musyimi Mulwa, Benson Hinga Kinyanjui & Eliud Kinyanjui Hinga v Francis Kimegho Ngala

Date Delivered:

17 Dec 2020

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Joseph Kiplagat Sergon

Citation:

Obadiah Musyimi Mulwa & 2 others v Francis Kimegho Ngala [2020] eKLR

Court Division:

Civil

County:

Nairobi

Extract:

0

Case Outcome:

Motion succeeded

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. APPLICATION NO. E434 OF 2020

OBADIAH MUSYIMI MULWA.............................................1

ST

APPLICANT

BENSON HINGA KINYANJUI.............................................2

ND

APPLICANT

ELIUD KINYANJUI HINGA.................................................3

RD

APPLICANT

-VERSUS-

FRANCIS KIMEGHO NGALA...............................................RESPONDENT

RULING

1. The subject matter of this ruling is the Notice of Motion dated

16

th

October, 2020 taken out by the 1

st

, 2

nd

and 3

rd

applicants in which they sought for an order for a stay of execution of the judgment delivered on 6

th

February, 2020 in Milimani CMCC NO. 10843 of 2018 and consequent decree, pending the hearing and determination of the appeal; and a further order for leave to lodge the main appeal out of time against the aforesaid judgment.

2. The Motion is supported by the grounds set out on its body and

the facts stated in the affidavit of advocate

Purity Wambui

Waikwa

.

3. In opposing the said Motion, the respondent swore a replying

affidavit on 23

rd

October, 2020.

4. When the Motion came up for interparties hearing before this

court, the parties’ advocates opted to rely on the respective

documents filed.

5. I have therefore considered the grounds laid out on the body of

the Motion; and the facts deponed in the affidavits supporting

and opposing the Motion.

6. Before I proceed with the merits of the Motion, I deem it

necessary to address a preliminary issue that was raised by the respondent, that the instant Motion is unfounded since the matter was compromised by the parties.

7. In his replying affidavit, the respondent states that following

delivery of the impugned judgment, the applicants’ advocates engaged with his advocates with the aim of negotiating the award made by the trial court downwards and that it was agreed by consent of the parties that the total sum to be paid to the respondent is Kshs.800,000/.

8. The respondent further states that a consent to that effect was

filed before the trial court on 4

th

September, 2020 and that

execution proceeded on the basis of that consent.

9. It is the assertion of the respondent that the applicants

undertook to settle the consent amount by 23

rd

October, 2020

and executed fees payment with the Auctioneers to that effect.

10. I note that the applicants did not respond to this specific issue.

Nonetheless, I have looked at the correspondences annexed to the replying affidavit to support the averment that the applicants’ advocate had been engaged in negotiations with the advocate for the respondent with a view to settle the award at an all-inclusive sum of Kshs.800,000/.

11. I have also looked at the consent letter dated 2

nd

July, 2020

addressed to the Executive Officer of the Chief Magistrate’s Court at Milimani Commercial Courts, the contents of which are to have the judgment varied to the sum of Kshs.800,000/ and that there be a stay of execution for 15 days from the date of filing of the consent.

12. However, the aforementioned letter does not bear the official

court stamp to indicate when, if ever, it was received by the Chief Magistrate’s Court. Moreover, there is nothing to indicate whether the consent was ever adopted as an order of the court by the trial court for it to have legal effect. In the same manner, the respondent has not brought any credible evidence to confirm the position on whether the applicants have satisfied the decretal sum.

13. In the circumstances, I have no basis on which to conclude that

the matter was ever compromised. I will now look at the merits of the Motion.

14. It is evident that the Motion is seeking twin orders, the first

being leave to appeal out of time against the impugned judgment

delivered on 6

th

February, 2020.

15.

Section 79G

of the

Civil Procedure Act

sets the timelines for

lodging an appeal against the decision of a subordinate court as 30 days from the date of the decree or the order being appealed against. The provision further stipulates that an appeal may be admitted out of time where sufficient cause has been shown.

16. Under the provisions of

Section 95

of the

Civil Procedure Act

and

Order 50, Rule 5

of the

Civil Procedure Rules

, the courts have power to enlarge the time required for the performance of any act under the Rules even where such time has expired.

17. The guiding principles to be satisfied in an application seeking

leave of the court to file an appeal out of time/for the extension of time were the laid out in the case of

Thuita Mwangi v Kenya Airways Limited [2003] eKLR

and were reaffirmed in the case of

Growth Africa (K) Limited & another v Charles Muange Milu [2019] eKLR

. The principles are: the length and reason for the delay; whether the appeal is arguable or not and the prejudice which will befall the respondent should the applicant be granted leave to appeal.

18. On the first principle on length of delay, the applicant is of the

view that the Motion has been brought without unreasonable

delay. The respondent did not address me on this principle

19. Upon my perusal of the record, I note that none of the parties

availed a copy of the impugned judgment for my reference. Nevertheless, it is not in dispute that the judgment was delivered on 6

th

February, 2020 which is about eight (8) months prior to the filing of the instant Motion. In my mind, while there has clearly been a delay in bringing the Motion, I do not find such delay is inordinate.

20. Concerning the reason(s) for the delay, Purity Wambui Waikwa

in her supporting affidavit states that the delay in filing the appeal was occasioned by the time taken in receiving instructions from the applicants to lodge an appeal against the decision of the trial court and was further occasioned by the fact that the advocate who was handling the matter had left the employment of the firm without a proper hand over of matters.

21. The deponent also states that the Covid-19 pandemic played a

role in the delay since it was not possible for the applicants to visit their advocate for some time owing to the travel restrictions put in place by the government.

22. Upon considering the above explanation, I am alive to the fact

that the global Covid-19 pandemic greatly disrupted the operations of the courts and the country at large since the month of March. I am also alive to the fact that there was temporary closure of the courts and offices soon thereafter, as well as restricted movement put in place by the Kenyan Government. Consequently, I find the explanation for the delay to be reasonable in the circumstances.

23. On whether or not an arguable appeal exists, Purity Wambui

Waikwa states that the intended appeal raises arguable points of

law and fact. This subject was not touched on by the respondent

24. From my study of the grounds of appeal raised in the draft

memorandum of appeal annexed to the Motion, I note that the appeal is primarily challenging the award of general damages by the trial court, which the applicants argue to be manifestly excessive and a departure from conventional awards previously made. Upon considering the above, I am satisfied that the applicants have established arguable points of law and fact in their draft memorandum of appeal.

25. Under the final principle on prejudice, the applicants are of the

view that the respondent does not stand to be prejudiced should leave be granted for them to file their appeal out of time. In the absence of any contrary averment, I am satisfied that there is no indication of prejudice on the part of the respondent that cannot be compensated through costs.

26. For all the foregoing reasons, I am convinced that it would be

fair and proper for me to exercise my discretion in favour of the

applicants.

27. The second order sought is for stay of execution of the impugned

judgment pending the hearing and determination of the appeal.

28. The guiding provision is

Order 42, Rule 6(2)

of the

Civil

Procedure Rules

which sets out the following three (3)

conditions in determining an application for stay.

29. The first condition is that the application must have been made

without unreasonable delay, which condition has already been

addressed.

30. Under the second condition, the applicants must show to this

court’s satisfaction the substantial loss they would likely suffer if the order for stay is denied.

31. From the Motion and supporting affidavit, it is apparent that the

applicants are apprehensive that the execution process has commenced and there is a likelihood that they will be unable to recover the decretal amount from the respondent once the same is paid to him and the appeal succeeds. There was no retort from the respondent on this subject.

32. The legal position is that execution is a lawful process and hence

a party cannot simply argue that a stay of execution is necessary in order to halt or prevent execution. It is on this basis that the court in the case of

James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR

rendered itself thus:

“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. This is what substantial loss would entail…”

33. The question on who has the burden of proof on the issue of

refund of the decretal sum was addressed by the Court of Appeal’s analysis in the case of

National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLR

when it held that:

“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…”

34. In the absence of any indication on whether the respondent is in

a financial position to refund the decretal sum should the circumstances require it, I am satisfied that the applicants have reasonably shown that they will suffer substantial loss.

35. In respect to the final condition which is the provision of security

for the due performance of such decree or order, the applicants indicated their readiness and willingness to deposit the decretal sum in a joint interest earning account, which I find reasonable.

36. In the end, the Motion succeeds on merit and the following

orders are made consequently:

a) The applicants are granted leave of 14 days to appeal

out of time.

b) There be a stay of execution of the judgment

delivered on 2

nd

February, 2020 on the condition that the applicants deposit the entire decretal sum in an interest earning account to be held in the joint names of the parties’ advocates and or firms of advocates within 30 days from today, failing which the order for stay shall automatically lapse.

c)

Costs of the application to abide the outcome of the

appeal.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 17

th

day of December, 2020.

............................

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the 1

st

, 2

nd

and 3

rd

Applicants

……………………………. for the Respondent