[2022] KEHC 17160 (KLR)

Ababu v Kairuki & 2 others (Miscellaneous Civil Suit E435 of 2022) [2022] KEHC 17160 (KLR) (Civ) (2 November 2022) (Ruling)

Neutral citation: [2022] KEHC 17160 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Civil Suit E435 of 2022

JN Mulwa, J

November 2, 2022

Between

Meshack Bwuli Ababu

Applicant

and

Phillip Kairu Kairuki

1st Respondent

Allan Kariuki Kamau

2nd Respondent

Eagle Group

3rd Respondent

Ruling

1. An exparte judgment was delivered by the trial court on September 20, 2020 in default of appearance by the defendant (now the applicant).Six months thereafter, upon application by the defendant by application dated March 21, 2022, the trial court found no merit in the application for setting aside of the exparte judgment and stay of execution by a ruling delivered on June 10, 2022. Arising from the above, this application dated July 6, 2022 was filed.

2. The applicant seeks, among many other mixed up orders for stay of execution of the trial court judgment; as well as the dismissal orders; leave to file an appeal out of time and interim stay orders pending hearing and determination of the intended appeal. Annexed to the application is a draft Memorandum of Appeal that the applicant states to have high chances of success.

3. The application is opposed by a replying affidavit sworn on July 26, 2022 by one Meshack Bwuli Ababu the respondent herein.

4. I have considered the pleadings and submissions. The issues that arise for determination, in my view are:1. Whether the applicant has sufficiently explained to the court the reasons for the failure and delay in filing the intended appeal out of time.

2. Whether in the circumstances of this case, an order of stay of execution pending hearing and determination of appeal, if answer to (1) above is in the affirmative.

3. Costs.

5. The respondent was awarded a sum of kshs 60,000 general damages and special damages of kshs 4,550/- plus costs of the suit. I have also considered the injuries the respondent had sustained in the accident subject of these proceedings.

Leave to appeal out of time. 6. The applicant had 30 days to file an appeal from the trial court’s judgment – on or before October 20, 2021 – section 79 G of the Civil Procedure Act.This application was filed on July 6, 2022 – almost nine (9) months after the judgment. On June 10, 2022, the trial court dismissed an application for stay of execution and setting aside the exparte judgment.It is instructive that the application dated March 21 2022 did not seek leave to file appeal out of time. Is it therefore an afterthought? Be that as it may, the Constitution of Kenya 2010 guarantees a litigant a right to a fair hearing – articles 47 and 50

7. A party seeking the exercise of discretion of a court in respect thereof must however satisfy the court the reasons for the delay. The case of Mombasa County Government vs Kenya Ferry Services and another (2019) set the guiding principles thus:“………the discretion of the court is unfettered. The applicant must explain the reasons for the delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant………”It is further trite that extension of time is not a right to a party, but an equitable remedy and only to a deserving party. Where a reasonable cause has been shown the right will be granted.

8. I have not seen any explanation by the applicant for the delay or at all. Indeed, the supporting affidavit is quiet on why the appeal was not filed on time or at ll.The Court of Appeal inThuita Mwangi vs Kenya Airways Limited (2003) eKLR rendered that in the exercise of its discretion, the court ought to consider;a.The period of delayb.Reasons for the delayc.Arguability of the delayd.Decree of prejudice which could be suffered by the respondent if the extension is granted.Section 79 G permits the extension of time once the delay has been convincingly explained.

9. On the arguability of the intended appeal, I have perused the draft Memorandum of Appeal and the grounds stated therein. I find no arguable ground, the same being on the trial court’s ruling whereof the applicants application to set aside the exparte judgement was dismissed.

10. Without attempting to interrogate the merits or demerits of the intended appeal, I am not convinced that anything would turn out in favour of the applicant at the appeal stage. No arguability is demonstrated, no substantial loss to the applicant if orders of stay are denied. Having found as above, the prayer for stay of execution pending hearing and determination of the intended appeal falls by the way.

11For the above reasons, the application dated July 6, 2022 is found to be devoid of merit. It is dismissed with costs to the respondent.

12Orders accordingly.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 2ND DAY OF NOVEMBER, 2022J N MULWAJUDGE