[Notice of Motion Dated the 21St September, 2021 and Notice of Preliminary Objection Dated the 30th September, 2021]
1.The appellants filed the notice of motion dated the 27th September, 2021 seeking for the following orders;a.Spent.b.Spent.c.There be stay of execution of the judgment and decree hearing pending the hearing and determination of the appeal herein, Eldoret Civil Appeal No. E039 of 2021.d.Costs of this application do abide the outcome of the appeal.The application is brought under Sections 1A, 1B, 3A, 34 of the Civil Procedure Act and Order 42 Rule 6, and Order 51 of the Civil Procedure Rules. It is premised on the seven (7) grounds on its face and supported by the affidavit sworn by Simon Kurgat, the 2nd appellant, on the 27th September, 2021. It is the appellants case inter alia, that they are aggrieved by the judgment of the Lower Court and have appealed against that decision to this Court; that they are apprehensive that the Respondent will extract the decree and execute the judgment resulting in irreparable loss to the Appellants; that the intended appeal has overwhelming chances of success and will be rendered nugatory should this application be disallowed, and that the application is grounded on the interest of justice.
2.The application is opposed by the respondent through the two (2) grounds on the Notice of Preliminary Objection dated 30th September, 2021 and replying affidavit sworn by Esther Jelagat Kosgei, the respondent, on the 30th September, 2021. The respondent’s case is among others that the application offends the provisions of Section 79G of the Civil Procedure Act; that the motion is an abuse of court process and subjudice as a similar motion for stay of execution is pending before the lower Court; that grant of stay cannot be predicated on an incompetent motion; that the application is subjudice, and neither substantial loss nor sufficient cause have been established; that no offer of security has been made; that the litigation has protracted for about sixteen (16) years from the year 2005, and that the appeal and motion should be dismissed with costs.
3.That following the consent of the 21st February, 2022 on filing and exchanging submissions on both the preliminary objection and the notice of motion, the learned counsel for the appellants and respondent filed their submissions dated the 22nd March, 2022 and 5th April, 2022 respectively, which are as summarized here below.a.The appellants counsel submitted that the grounds set out in Order 42 Rule 6 of the Civil Procedure Rules serve as guidance to the court in considering applications such as the instant one. The counsel referred to the decisions in the cases of RWW vs. EKW  eKLR, and Victory Construction vs BM (Minor suing through next friend noe PMM  eKLR. The appellants further submitted that the amount claimed under the impugned judgement is substantial, and if paid to the respondent when the appeal is pending, the respondent will be unable to repay should the appellants be successful on appeal. That the application has been filed one month after the judgement, and three days after filing the appeal and therefore without unreasonable delay. That it is for the court to give directions for the security to be deposited. That the appellants have established the requirements for the grant of stay of execution of the impugned judgement, and their prayer should be granted with costs in view of section 27 of Civil Procedure Act, chapter 21 of Laws of Kenya, that costs follow the events.b.The learned counsel for the respondent submitted that this Court is without jurisdiction to entertain both the application and appeal as the same was lodged out of time contrary to the provisions of Section 79 of the Civil Procedure Act. The counsel cited the decisions in the cases of Joseph Michael Mwenja vs. Woolmatt Limited (2019) eKLR, Gregory Kiema Kyuma vs. Marietta Syokau Kiema (1988) eKLR, Captain Harry Gandy vs. casper Air Charters Limited (1956) 23 EACA, 139, Carter & Sons Ltd vs. deposit Protection Fund Board & 2 others Nbi. Civil Appeal No. 291 of 1997, Ndiritu Muriithi vs. IEBC & 2 others (2018) eKLR, Meteine Ole Kilelu & 19 others vs. Moses K. Nailole (2009) eKLR, Machira t/a Machira & Company Advocates vs. East Africa Standard (No.2) (2002) KLR 63, Kenya Shell Limited vs. Benjamin Karugu Kibiru & Another Nbi. CA Civil Appli. No. 97 of 1986, Attorney General vs. Law Society of Kenya & Another CA Civil Appli. No. 133 of 2011 (UR), Richard Nyongesa Mayamba vs. Jane Namono Meru (2011) eKLR, and Jaber Mohsen Ali & Another vs. Priscillah Boit & Another (2014) eKLR. The counsel submitted further that the motion is defective and incompetent for failure to indicate the case reference number, and particulars of the decree sought to be stayed; that there are no competent pleadings upon which the relief sought can be grounded; that neither substantial loss nor sufficient cause have been established by the appellants; the appellants have not shown that the respondent is a person of straw; that the issue of security has only been raised in submissions, yet it ought to have been deposed to on oath, and urged the court to strike out both the motion and the appeal, with costs.
4.the following are the issues for the court’s determinations;a.Whether Notice of Preliminary Objection has merit.b.If (a) is in the negative, whether the Appellants have satisfied the threshold for grant of stay of execution pending the hearing and determination of the Appeal.c.Who pays the costs.
5.the court has after carefully considering the grounds on the application and the preliminary objection; the affidavit evidence by both sides, submissions by counsel for the parties, superior courts decisions cited thereon come to the following conclusions;a.What amounts to a preliminary objection was defined by Sir Charles Newbold in the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd  EA 696, cited by the Supreme Court in Hassan Nyanje Charo v. Khatib Mwashetani & 3 Others, Supreme Court Appli. No. 23 of 2014, as follows:It therefore follows that a preliminary objection can only be raised on a pure question of law. That includes points of law touching on the jurisdiction of the court, questions of the plea of limitation and questions of a party’s locus standi to institute or defend a suit.b.To discern a point of law, the Court has to be satisfied that there is no contest as to the facts on record. The facts have to be deemed as uncontested or as prima facie presented on record. Anything purporting to be a preliminary objection must not deal with disputed facts, and as stated by Hon. Justice Ojwang (as he then was) in Oraro v. Mbaja  eKLR, ‘it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence......” Whenever a Court of law is called upon to hear and determine an appeal arising from a decision of a subordinate court, it cannot assume jurisdiction that it does not have.c.The question of whether an appeal was filed out of time goes to the root of the jurisdiction of this Court. For as long as the question of jurisdiction lingers, it must be determined in limine. See Owners of the Motor Vessel “Lillian SS” versus Caltex Oil (Kenya) Ltd 1989 KLR 1. In the matter before the court, it is not contested that the impugned judgment was delivered on 19th August, 2021. It is also not disputed that the memorandum of appeal was filed on the 24th September, 2021 and the instant notice of motion for stay of execution order filed on the 27th September, 2021. The question that arises is therefore whether there is a proper appeal before this Court. Section 79G of the Civil Procedure Act provides that -What can be gleaned from the above provision is that for the Appellants to have a competent application, based on the appeal, the said appeal ought to have been filed within the statutorily prescribed time limit prescribed of thirty (30) days.d.That as the impugned judgement was delivered on the 19th August, 2021 the thirty days lapsed on or about 18th September 2021. That the appellants had not filed any appeal by that date, and it was not until seven (7) days later on the 24th September, 2021, that the appeal herein was filed. That the appellants have not sought for extension of time to file the appeal, or attempted to offer any explanation for the delay, by for example tendering a certificate of delay. I must emphasize that the requirement that an appeal ought to be filed within thirty (30) days is not a mere procedural requirement or technicality curable under Article 159 of the Constitution. It is not. The thirty (30) days period is rooted in express statutory provisions, and I am of the view that it goes to the root of the appellate jurisdiction of this Court. As the appeal upon which the instant application is grounded upon was filed outside the thirty (30) days period prescribed by the law, and therefore out of time, this Court is bereft of jurisdiction in both the appeal and the notice of motion.e.There is no evidence of any application filed by the Appellants to have the appeal admitted out of time. There is therefore, no valid appeal before this Court upon which I can issue an order for stay of execution pending appeal, in terms of the notice of motion filed. That unless otherwise permitted by the court, an order for stay of execution can only be issued where there is a valid appeal before court, and as there is no valid appeal in this case. The application for stay pending appeal therefore lacks a foundation.f.Further, I have noted that the appellants have not disputed that they had filed an application dated the 31st August, 2021 before the lower court seeking for stay of execution orders over the same judgement delivered on the 19th August, 2021. I have looked at the copy of the said application annexed to the respondent’s replying affidavit and it seeks stay of execution of the decree emanating from the same judgment as the present application. That application was reportedly pending ruling before the Magistrates’ Court by the time the instant notice of motion was filed. I fail to understand why the appellants found it necessary to file the present application when both parties and Counsel were aware of the existence of the application for stay before the lower Court. The existence of the application for stay before the lower court over the same judgement and or decree makes the application herein that was subsequently filed before this court subjudice.g.That the findings above lead the court to conclude that the notice of motion dated the 27th September, 2021 is without merit. That further, the court finds merit in the two grounds raised by the respondent through the preliminary objection dated the 30th September, 2021.h.That as the appellants’ application has failed while the respondent’s preliminary objection has been upheld, in terms of section 27 of the Civil Procedure Act, chapter 21 of Laws of Kenya, the appellants will pay the respondent costs.
6.The upshot of the foregoing is that the appellants’ application fails while the respondent’s preliminary objection succeeds. The court therefore orders as follows;a.The Appellants’ application dated the 27th September, 2021 be and is hereby dismissed with costs.b.The Respondent’s preliminary objection is hereby upheld and the Memorandum of Appeal dated and filed on the 24th September, 2021 be and is hereby struck out with costs.Orders accordingly.