Kariuki v EMO (Suing as the mother and next friend of John Nyaribo) (Miscellaneous Civil Application 390 of 2023) [2024] KEHC 6883 (KLR) (5 June 2024) (Ruling)
Neutral citation:
[2024] KEHC 6883 (KLR)
Republic of Kenya
Miscellaneous Civil Application 390 of 2023
HM Nyaga, J
June 5, 2024
Between
Julius Kariuki
Applicant
and
EMO (Suing as the mother and next friend of John Nyaribo)
Respondent
Ruling
1.By a Notice of Motion dated 30th November,2023 brought under Sections 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act, Order 42 Rule 6(1)(2) and (7) and Order 51 Rule 1 of the Civil Procedure Rules,2010, the Applicant seeks for orders that:-
1.Spent
2.This Honourable Court be pleased to grant the Applicant leave to appeal out of time in respect to the judgment/decree delivered in Nakuru CMCC No 1322 of 2021 by Hon. Prisca Nyotah.
3.Spent
4.This Honourable Court be pleased to grant an order of stay of execution of the judgment and/or the decree delivered on 2nd August,2023 and all consequential orders arising therefrom pending the hearing and determination of the intended Appeal herein.
5.This Honourable Court be pleased to issue an Order for provisions of a Bank Guarantee of the entire future medical expenses and costs pending hearing and determination of the Intended Appeal herein.
6.This Honourable Court be pleased to issue any other Order as it may deem just, appropriate and expedient in the interest of justice.
7.Costs of this Application be provided for.
2.The Application is predicated on grounds on its face and supported by an affidavit of the Applicant’s Counsel, Cynthia Kemunto, sworn on the even date.
3.It is her deposition that after delivery of the Judgment they informed the instructing client Direct Line Assurance Ltd. the terms of the Judgment but unfortunately the instructing client’s claims officer who received the terms left the employment before issuing further instructions, and by the time they received instructions to appeal the 30 days period within which to appeal had lapsed.
4.She believes the intended appeal has very high chances of success and states that the Applicant is apprehensive the respondent will commence execution proceedings against him as there is no stay of execution in force thereby rendering the intended appeal nugatory.
5.She asserts that the R espondent’s means is unknown and the applicant is thus reasonably apprehensive that if the decretal sum is paid to her she may not be in a position to refund the same in the event the Intended Appeal Succeeds.
6.She states that the Applicant is ready and willing to furnish bank guarantee for the entire decretal sum pending the hearing and determination of the intended appeal.
7.She prayed that the Application be allowed in the interests of justice.
8.In response to the Application, the respondent’s Counsel Nancy Njoroge swore a Replying Affidavit on 19th December, 2023 wherein she avers that the applicant’s decision to appeal against the judgment of the trial court is made in bad faith considering the ship has already sailed in this matter following full payment of money owing to the respondent by her counsel in the wake of non-existence of a pending appeal.
9.She believes the Application is a clear abuse of the court process and ripe for dismissal.
10.The Application was canvassed through written submissions. Only the Respondent’s submissions are on record.
Respondent’s Submissions
11.The Respondent submitted that the parties recorded consent on 21st December, 2023 whereby the Applicant undertook to offset the outstanding balance of Kshs 165, 101/= within 21 days hence making the consent a judgment of the court.
12.The respondent referred this court to the case of Brooke Bond Liebig Ltd v Mallya [1975] EA 266 on the principles of setting aside of a consent order and the case of Flora N. Wasike v Jestimo Wamboko [1988] eKLR for the proposition that any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and those claiming under them.
13.The Respondent therefore submitted that this application is an abuse of the court process, incompetent and urged this court to dismiss the same with costs.
Analysis & determination
14.The issues that arises for determination are:-1.Whether the Application is an abuse of the court process.2.Whether the application seeking leave to appeal out of time is merited.3.Whether stay orders sought should be granted
15.I will address the above issues seriatim.
16.Black Law Dictionary, Sixth Edition Black, Henry Campbell, Black Law Dictionary Sixth Edition, Continental Edition 1891- 1991 P 990 P 10-11 defines abuse as;
17.The Court of Appeal in Meme v Republic & another (2004) eKLR discussed abuse of the court process thus: -
18.In the Nigerian case of Amaefule & other v The State, Oputa JSC stated that an abuse of process can also mean abuse of legal procedure or improper use of the legal process
19.It is generally accepted that the court is entitled to protect itself from abuse. There is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings, or put an end to it. (See the case of Stephen Somek Takweny & another v David Mbuthia Githare & 2 others Nairobi (Milimani HCC No 363 of 2009)
20.In the instant case the respondent believes the application is an abuse of the court process in view of the fact that the decretal sum has already been fully paid and that there is a consent judgment that arose from the parties and recorded on 21st December, 2023 whereby the Applicant undertook to offset the outstanding balance of Kshs 165,101/= within 21 days. The Respondent therefore posited that the Applicant has not met the principles for setting aside the consent order.
21.It is my position that full payment of the decretal sum is not a bar from preferring an appeal. On this, I’m guided by a similar holding in Luke Nzwii v Alex Musau Muindi [2018] eKLR where it was stated thus:-
22.The arguments advanced by the Respondent in regards to the aforementioned consent cannot hold as the said consent was only in respect of payment of the balance due. The consent itself was silent on the issue of whether the matter was marked as settled. In addition the consent in question does not appear to have been adopted as order of the court. It is trite law that a Consent only becomes binding on parties and attains legal character once it is adopted as an order or judgment of the Court. In Church Road Development Co. Ltd v Barclays Bank of Kenya & another HCCC No 296 of 2006 Hon Justice Onyancha (as he then was) held as follows:-
23.Further in the case of Simon Ayiemba v Kenya Industrial Estates Ltd Busia Civil Appeal No 5 of 2001 Hon. Justice Sergon held:-
24.Finally the Supreme Court of Kenya rendered itself on this issue in the case of Geoffrey M. Asanyo & others v The Attorney General [2018] eKLR where their Lordships held:-
25.Flowing from the above, it is my opinion that the instant application is not an abuse of the court process.
26.I will now deal with the second issue. Section 79G of the Civil Procedure Act provides that:
27.The Supreme Court of Kenya sitting at Kisumu in the case of County Executive of Kisumu v County Government of Kisumu & others [2017] eKLR while relying to its decision in the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others Application No 16 of 2014 (supra) the Hon. Judges reiterated the considerations to be made in such a case to be as follows:a.Extension of time is not a right of a party. 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 the discretion to extend time, is a consideration to be made on a case to case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;e.Whether there will be any prejudice suffered by the respondents if the extension is granted;f.Whether the application has been brought without undue delay; andg.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
28.The discretion to extend time must be exercised within the principles of the law and factors to be considered when determining such an application. The principles were set out in the Court of Appeal case of Omar Shurie v Marian Rashe Yafar (supra) where it was held:
29.It is not disputed that the judgment in the lower court was delivered on 2nd August, 2023. The Applicant therefore ought to have filed his appeal on or before 2nd September, 2023. That was not done. The reasons given for failure to lodge an appeal within the stipulated time is that there was a delay in receiving instructions to appeal as the claims officer of the Applicant’s insurer/instructing client who was aware of the judgment terms left employment before issuing further instructions. The Applicant did not attach a letter of resignation to substantiate this position. However, the court notes that the mistake was that of the insurer and given the nature of its operations such delays cannot be ruled out. I am prepared to give the applicant a chance to ventilate his appeal.
30.With regard to whether the intended appeal is arguable, I am alive to the fact that in deciding an application of this nature, the court must be careful not to delve into the merits of the case as that is under the purview of the appellate court after hearing the merits of the same. The court should therefore only be concerned with the question of whether or not the appeal will be rendered nugatory.
31.The essence of considering whether the appeal raises triable issues is to avoid the same being rendered nugatory should the decision of the appellate court overturn that of the trial court.
32.A cursory look at the Memorandum of Appeal shows that the same is essentially on the extent of the award of damages and failure to subject the same to the apportioned liability. I am of the view that the grounds raised therein are triable and/or arguable.
33.The other limb is whether the Respondent can be adequately compensated in costs for any prejudice that may be suffered as a result of the exercise of discretion in favour of the Applicant. The answer is in the affirmative. I find that no prejudice will be caused to the Respondent that cannot be compensated by an award of costs if the Application is allowed.
34.Considering that extension of time is an equitable remedy, I hold that the Applicant should not be denied a seat in the altar of justice.
35.With respect to third issue , Order 42 Rule 6(2) of the Civil Procedure Rules provides:
36.In the instant case the Applicant claims that he will suffer irreparable loss should execution proceedings commence against him as his appeal will be rendered nugatory and he may not be able to recover the decretal sum from the respondent as her means of income is unknown.
37.The record shows that subsequent to the filing of this application the applicant paid the entire decretal sum. As such his apprehension over execution has now been overtaken by events. The same now applies to the offer of security by way of a bank guarantee for due performance of the decree.
38.In view of the foregoing, I find that the question of execution has been overtaken by events upon payment of the full decretal sum. Thus no execution can lawfully take place.
39.In regards to whether this Application has been filed without unreasonable delay, I have already noted the Applicant did not satisfactory explain the delay of 4 months in filing this application but I am willing to accommodate the applicant so as to ventilate his intended appeal.
40.In conclusion, I find that the prayers in the application dated 30th November, 2023, save for prayer No 2, have been overtaken by events. I find that said prayer to be merited and I allow it. I therefore order as follows;1.The appellant/ applicant is allowed to file the appeal out of time within 21 days from the date hereof.2.In default of (1) above, the leave so granted shall be deemed to have lapsed automatically without further reference to the court.3.Costs of the subject application shall abide the appeal, and if none is filed, then they shall be borne by the applicant.
DATED, SIGNED AND DELIVERED AT NAKURU 5TH DAY OF JUNE, 2024..........H. M. NYAGA,JUDGE.In the presence of;Court Assistant JenifferMs Cherotich for ApplicantNo appearance for Respondent