Catholic Archdiocese of Nyeri v Mwangi & another (Environment and Land Appeal E055 of 2021) [2023] KEELC 21229 (KLR) (2 November 2023) (Ruling)
Neutral citation:
[2023] KEELC 21229 (KLR)
Republic of Kenya
Environment and Land Appeal E055 of 2021
JO Olola, J
November 2, 2023
Between
Catholic Archdiocese of Nyeri
Appellant
and
Peter Kamau Mwangi
1st Respondent
Angelus Maina Mwangi
2nd Respondent
Ruling
1.By the notice of motion dated and filed herein on March 15, 2023, the Catholic Archdiocese of Nyeri (the appellant) prays for orders:3.That this Honourable court be pleased to extend the period within which to comply with the ruling of the court delivered on February 16, 2023, by a further period of 30 days;4.That the extension of time do operate as a stay of execution pending compliance and further orders of this Honourable court; and5.That the costs of this application be provided for.
2.The application which is supported by an affidavit sworn by the applicant’s Financial Administrator Father Boniface Mwangi is premised on the grounds:(i)That this court delivered a ruling on February 16, 2023 requiring the appellant to deposit the decretal sum of Kes 540,000/- within 30 days;(ii)That the 30 days lapsed on March 16, 2023 but the Appellant was not able to raise the entire amount as required and was unable to comply with the orders of the Court and hence the need for extension of time;(iii)That at the time of making the application dated June 16, 2022, the appellant was in possession of the funds and was able and willing to deposit the decretal sum;(iv)That owing to hard economic conditions coupled with the fact that the appellant is a religious organization that generates income within its organization, and not funded, it has not been easy to raise the entire amount all at once;(v)That the appellant has managed to raise half of the required amount and seeks another 30 days to enable it mobilise its resources and be able to deposit the decretal amount;(vi)That the application has been brought well on time and before the lapse of the orders and there is no prejudice visited upon the Respondent who will be heard on appeal.
3.Peter Kamau Mwangi (the 1st respondent) is opposed to the application. By what he terms as a notice of preliminary objection dated March 15, 2023, the 1st respondent objects to the application on the basis that:1.The appellant’s application is contrary to the conditions set out in order 42 rule 6(2) and 7(1) of the Civil Procedure Rules, 2010;2.That the application is incompetent, fatally defective and an abuse of the court process;3.That the appellant’s application should therefore not be entertained by this Honourable Court; and4.That the application be struck out with costs to the Respondent.
4.Angelus Maina Mwangi (the 2nd respondent) is similarly opposed to the application. In a replying affidavit sworn on his behalf by his Advocate on record Karweru Muchemi Charles, the 2nd respondent avers that the appellant is to the best of his knowledge a vastly pecunious religious organization that owns huge tracts of land and has properties at Milimani, Nairobi which it rents out to Government and other persons.
5.The 2nd respondent further avers that on April 12, 2022, the appellant obtained orders of stay before the Lower Court but failed to abide by its condition. The appellant then filed another Motion before this court on June 16, 2022 seeking extension of time and the same was allowed on set conditions.
6.The 2nd respondent asserts that the current application is an abuse of the court process and urges the court not to countenance on a litigant who is employing the filing of motions to deny the respondent the fruits of their Judgment.
7.I have carefully perused and considered the application and the responses thereto. I have similarly perused and considered the submissions and authorities placed before me by the learned advocates representing some of the Parties herein.
8.By this application, the appellant urges the court to extend the period within which to comply with the ruling of this court delivered on February 16, 2023, by a further period of 30 days. In addition, the appellant urges that upon being granted, that extension of time does operate as a stay of execution of the orders issued herein pending compliance with the same.
9.The appellant’s application is premised under order 50 rule 6 of the Civil Procedure Rules, 2010. The said rule provides thus:-
10.As was stated by the Supreme Court of Kenya in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others (2014) eKLR:
11.The application before me arises from a ruling of this Court delivered on February 16, 2023. The said ruling arose from an application dated June 16, 2022 filed by the same appellant wherein it did urge the court to stay execution of a Judgment delivered in the lower court against itself on November 23, 2021. Consequent upon the delivery of the said Judgement, the appellant had filed an application in the trial court for stay of execution pending an appeal to this Court.
12.Having considered the said application and by a ruling delivered by the trial court on April 12, 2022, the appellant was granted a stay of execution of the decree on condition it did deposit the sum of Kes 540,000/- in an interest gaining joint account in the names of the Parties Advocates within 30 days.
13.As it turned out, the appellant was unable to comply with the order to deposit the said amount within the timelines stipulated by the trial court. Accordingly and by the said application dated June 16, 2022, the appellant moved to this court seeking an order of stay of execution as well as leave to be granted to itself to deposit the required security within another 30 days.
14.By the ruling delivered herein on February 16, 2023 aforesaid, this Court acceded to the appellant’s request and granted it a further 30 days within which to deposit the security of Kes 540,000/-. It turns out that the appellant did not once again comply with the said orders and by this present application, the appellant prays for another extension of time for a period of 30 days to comply with the court’s orders.
15.It is the appellant’s case that as at the time it made that application dated June 16, 2022, it was in possession of the funds and was able and willing to deposit the same. The appellant asserts that owing to hard economic times coupled with the fact that it is a religious organization that is not funded and generates income from within itself, it has since spent the money on other activities and it was not able to raise the sum required within 30 days of the court’s ruling delivered on February 16, 2023.
16.That explanation offered in paragraph 4 to 6 of the supporting affidavit of Father Boniface Mwangi is rather surprising given the reasons given for the previous application for extension of time by the appellant. In the application dated June 16, 2022 aforesaid, the same Father Boniface Mwangi deposed in the supporting affidavit that the appellant was unable to procure the required sum within 30 days due to certain bureaucratic procedures within the appellant organization.
17.In the ruling delivered herein on February 16, 2023, this court took into consideration the fact that the appellant is a large religious organisation and that it was possible that the bureaucratic processes within itself could have impeded it from accessing the funds in its accounts within the given 30 days. By the present application, the appellant is now telling the court that it is an impecunious organization and that it used the monies it had procured earlier for other purposes and was unable to raise the required security within the given timelines.
18.In the circumstances herein, it was apparent that the Appellant was being very economical with the truth and that it was not taking the Orders of the Courts cited above with the seriousness that they deserve. The law governing the issue of security for costs is set out under order 26 of the Civil Procedure Rules which provides as follows:
19.In the case of an appeal such as this one, order 42 rule 14 (1) and (3) of the Civil Procedure Rules stipulates as follows:
20.As was stated by Muriithi J. in Kisii High Court Election Petition No 6 of 2013 – Fatuma Zainabu Mohamed v Ghati Dennitah & 10 others (unreported) [cited with approval in Evans Nyambeso Sedekiah & another v Independent Electoral and Boundaries Commission & 2 others] (2013) eKLR:
21.In the matter herein, it was apparent that more than 2 years after Judgment was entered against itself and it was required to deposit security for costs, the appellant had evaded the same by giving all manner of excuses to justify its failure to comply with the orders of the court. In the premises, this court holds that the failure to deposit security for costs within 30 days from February 16, 2023 renders the appeal filed herein fatally defective.
22.The requirement for the deposit of the security for costs is a substantive legal requirement and not a procedural technicality that this court can excuse or extend time to enable compliance to be made.
23.Accordingly I dismiss the application and strike out the appeal filed herein with costs to the respondents.
RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT NYERI THIS 2ND DAY OF NOVEMBER, 2023. In the presence of:Mr. Okoth for the AppellantMr. Peter Kamau the 1st Respondent in personMs Miriti for the 2nd RespondentCourt assistant – Kendi..........................J. O. OLOLAJUDGE