HLDO v TFDO (Appeal E065 of 2022)  KEHC 380 (KLR) (Family) (27 January 2023) (Ruling)
Neutral citation:  KEHC 380 (KLR)
Republic of Kenya
Appeal E065 of 2022
MA Odero, J
January 27, 2023
1.Before this Court is the Notice of Motion (undated) by which the Applicant HLDO seeks the following orders:-
2.The application which was premised upon order 5 Rule 2(2) of the Civil Procedure Rules was supported by the Affidavit of even date sworn by the Applicant.
3.The Respondent TFDO opposed the Application through the Replying Affidavit dated 11th September 2022. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 11th October 2022 whilst the Respondent relied upon his written submissions dated 25th October 2022.
4.The Applicant and the Respondent were a couple who solemnized their marriage on 29th January 1996 in New York city, USA. The couple cohabitated as man and wife in New York City until August 1999 when they relocated to Kenya. Their union was blessed with two (2) daughters –(i)HDO born on 4th August 2000(ii)MDO born on 24th October 2002
5.The Applicant herein filed in the Magistrates court a Petition dated 16th November 2018 in which she made the following prayers:-
6.The Divorce petition was heard in the lower court. Vide a judgment delivered on 18th May 2022 Hon A.N. Makau Principal Magistrate allowed the Petition for Divorce but dismissed the prayer for Alimony (maintenance). Being aggrieved by the decision of the trial court the Applicant sought to file an appeal out of time.
7.In explaining the failure to file an appeal within the time stipulated by law the Applicant explained that she was away on a trip to Ethiopia when the judgment was delivered. That due to the situation in Ethiopia she was unable to contact her advocate to give him instructions in filing the appeal.
8.The Applicant argues that she stands to suffer prejudice if the orders of the trial court are not stayed as she is not in any gainful employment.
9.The Respondent on his part averred that the application has been brought under the wrong provision of law. He stated that the Applicant has not advanced sufficient reasons for her failure to file the appeal within the statutory timelines. That there was no positive order made by the trial court thus there was nothing to stay. The Respondent urged the court to dismiss the application with costs.
Analysis and Determination
10.I have considered the application before this court, the Replying Affidavit filed by the Respondent as well as the written submissions filed by both parties.
11.The Respondent had submitted that the applicant as filed was incompetent as the same was stated to be Order 5 Rule 2(2) of the Civil Procedure Rules 2010 which deals not with extension of time but rather with issue and renewal of summons to enter appearance.
12.Whilst the Respondent is correct that the wrong provision of law was cited I do not find that this renders the entire application incompetent. It is clear from the application what orders are being sought. Furthermore, Article 159 (d) of the Constitution of Kenya 2010 exhorts courts to administer substantive justice “without undue regard to procedural technicalities”.
13.The Applicant has prayed for an extension of time within which to file her appeal. Section 79 G of the Civil Procedure Act sets out the timelines for filing an appeal as follows:-
14.In this matter the trial court delivered its judgement on 18th May 2022. The Applicant did not file a Memorandum of Appeal until 15th July 2022 which was 58 days after the judgement had been delivered. This is way beyond the thirty (30) day period provided for in law.
15.Section 79G does contain a proviso that the court may in its discretion extend the period of time within which an appeal may be filed subject to the Applicant advancing sufficient cause for failing to file the appeal within the statutory period.
16.In Nicholas Kiptoo Korir Arap Salatt v IEBC & 7 others the Supreme Court of Kenya set down the principle which are to be considered in allowing an extension of time to file appeal as follows:-
17.The parameters for the exercise of a court’s discretion were concisely laid out in the case of Mwangi v Kenya Airways Ltd  eKLR where the Court of Appeal stated as follows: -
18.In this case the delay in filing the appeal is over sixty (60) days. In my view, this is not an inordinate delay.
19.The Applicant in explaining the delay stated that she was out of the country when the judgment was delivered. That she was unable to reach her advocate in order to give him instructions on filing of the Appeal.
20.These reasons advanced by the Applicant are not in my view persuasive. The facts that the Applicant was in Ethiopia on the date the judgment was delivered does not mean that she had no way of knowing the contents of the judgment. Likewise, the fact that the Applicant was outside of Kenya did not prevent her from issuing instructions to her Advocate regarding the filing an appeal.
21.We live a digital age. The judgement would have been available to the Applicant at the click of a button. Proceedings in the court in Kenya are now conducted virtually. The Applicant could log in from wherever she was in the world and follow the proceedings.
22.Further the Applicant does not need to be in Kenya in order to issue instructions to her Advocate. She could have very easily communicated with her Advocate by e-mail, skype, phone call or WhatsApp which services I am sure are available in Ethiopia.
23.The Applicant states that due to the ‘situation in Ethiopia’ she was unable to communicate with her lawyer. The Applicant did not elaborate on exactly what the ‘situation’ was. I reject the reasons advanced by the Applicant as ‘mere excuses’. The Applicant had ample opportunity to contact her Advocate to file the appeal within the thirty (30) days period but failed to do so. This application is a mere afterthought. The Applicant was simply indolent. Therefore this court is not inclined to exercise its discretion in favour of the Applicant.
(ii) Stay of Execution
24.The Applicant has sought a stay of execution of the judgment of the trial court. In that judgment the magistrate allowed the Petition for divorce but dismissed the applicant’s prayer for alimony. The Applicant has no issue with the divorce. However, she is aggrieved by the trial courts dismissal of her prayer for alimony arguing that the said dismissal is prejudicial as she has no means to sustain herself.
25.In dismissing the prayer for alimony the trial court made a ‘negative order’. No orders were made which were capable of execution by either party. Where such a negative order has been made then there exists no order capable of being stayed.
26.In Western College of Arts And Applied Sciences v Oranga & others [1976-80] I KLR the Court of Appeal for Eastern Africa held as follows:-
27.In Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya)  eKLR the Court of Appeal (Kantai J.A.) held as follows:-
28.Further, in the more recent case of Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others  eKLR, the Court of Appeal expounded on stay of execution stating:-
29.The same reasoning was applied in the case of Raymond M. Omboga v Austine Pyan Maranga (Supra) that a negative order is one that is incapable of execution, and thus, incapable of being stayed. This is what the court had to say on the matter:-
30.The dismissal by the trial court of the prayer for alimony is not an order capable of execution. The Respondent was not as a result of that order required to do or to refrain from doing any act. There is therefore nothing to stay.
31.Finally I find no merit in this application. The application is hereby dismissed in its entirety. Each party shall bear its own costs.
DATED IN NAIROBI THIS 27TH DAY OF JANUARY, 2023.MAUREEN A. ODEROJUDGE