[2022] KEHC 16269 (KLR)

Abdul & another v Shiakamiri & another (Suing as the Administrators of the Estate of Josephat Ikutwa Mbalilwa) (Civil Suit E215 of 2022) [2022] KEHC 16269 (KLR) (Civ) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16269 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit E215 of 2022

JN Mulwa, J

December 15, 2022

Between

Abdullaziz Abdul

1st Applicant

Moses Kabithi Wachira

2nd Applicant

and

Mark Miheso Shiakamiri

1st Respondent

Laura Amboso Ikutwa

2nd Respondent

Suing as the Administrators of the Estate of Josephat Ikutwa Mbalilwa

Ruling

1. Before the court is an application dated March 30, 2022. The Applicants seek leave of court to file an appeal out of time against the judgment and decree in CMCC No 3929 of 2016, delivered on February 16, 2022, as well as a stay order of execution of the said judgment pending hearing and determination of the appeal.The supporting affidavit is sworn by the Applicant Abdulaziz Abdul on March 30, 2022, and grounds stated at the face thereof. It is made pursuant to Sections 3A, 79G and 95 of the Civil Procedure Act, and Order 50 Rule 1 and 3 of the Civil Procedure Rules.

2. In opposing the application, a replying affidavit was sworn on May 20, 2022 by one Laura Amboso Ikutwa, the Judgment Creator/Respondent.

3. The impugned judgment was delivered on February 16, 2022.

4. By Section 79 G of the Civil Procedure Act, the Appeal ought to have been filed within 30 days of the delivery of the judgment – by March 16,2022. There is a delay of 40 days. By the supporting affidavit, the applicant purports to explain the delay by stating that soon after judgment was delivered, the court file could not be traced to enable their Advocate to furnish the applicant with a copy of the same, and by the time the said file was traced, the statutory period had lapsed. It is submitted that extension of the time will not prejudice the Respondent and that if the decretal sum is paid to the Respondent, it will be hard to recover the same should the appeal be successful.

5. On the other hand, the Respondent deposes that the Applicants were present during the delivery of the said judgment, and therefore the application is an afterthought, is incompetent and devoid of merit; and only made to frustrate the Respondent by delaying payment.

6. I have carefully considered the affidavits for, and in opposition to the application, as well as the Respondent’s written submissions.

Extension of Time. 7. Section 79 G of the Civil Procedure Act provides for a period of 30 days upon which an appeal may be lodged from the subordinate court. However, the proviso to the section provides that an appeal may be admitted out of time if the Applicant satisfies the court that he has good and sufficient cause for not filing the appeal in time.

8. The reasons for the delay have not been sufficiently explained as the applicants were present in court when the judgment was delivered. In the case Mutiso Vs Mwangi (1997) KLR 630, the Court of Appeal rendered itself thus: -“It is now settled that the decision whether to extend time for appealing is essentially discretionary. It is also well settled that generally, the matters which this court takes into account in deciding whether or not to grant an extension of time are: -The length of delay, secondly, the reason for the delay, thirdly (possibly), the chances of appeal succeeding if the application is granted and fourthly, the degree of prejudice to the Respondent if the application is granted”

9. The Supreme Court of Kenya reiterated the above position in the case Nicholas Kiptoo Korir Vs IEBC & 7 others (2014) eKLR and emphasized that a party who seeks extension of time has the burden of laying a basis to the satisfaction of the court; and whether the delay has been explained to the satisfaction of the court; and whether the application has been brought without unreasonable delay.

10. It is also now trite that there is no measure as to what inordinate delay is; and each matter must be considered on its peculiar circumstances.

11. A draft Memorandum of Appeal is annexed to the application as an exhibit. The Applicants say that they are aggrieved with the trial court’s judgment; and specifically for being held wholly liable for the accident, and making an award excessive award of damages of 1,753,535/- in general damages in favour of the deceased’s administrators. They seek to set aside the whole judgment.

12. It is the Respondents submission that the Applicants have failed to demonstrate that the intended appeal is arguable and likely to succeed. Anna Mwihaki Wairuru Vs Hannah Wanja Wairimu (2017) e KLR; and Leo Sila Mutiso Vs Rose Hellen Wangari Mwangi; and Scania East Africa Limited & 2 others Vs Patrick Mutisya koko (2020) e KLR.

13. One thing I have said, and will say it here, is that when parties do not provide the court with relevant material facts in an application of this nature; say by providing a copy of the ruling or judgment of the trial court, it is very difficult for a court to make a well informed decision on whether or not the Memorandum of Appeal, which most of the time is stereotyped, has any chances of success or not. No such order or the judgment has been provided to the court.

14. Notwithstanding this failure, I am not persuaded that the Applicants have sufficiently demonstrated that they indeed have an arguable appeal.However, a party ought to be granted an opportunity to ventilate its grievances to a court of law at all stages and not be denied such and opportunity on procedural process. I shall therefore allow the applicants to file their appeal out of time on terms appearing below

Stay of Execution. 15. The parameters for the grant of an order for stay of execution are provided under Order 42 Rule 6 (2) of the Civil Procedure Rules, thus 6(2) (b). Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant.

16. From the very scanty material facts placed before the court, it seems that the decree is a money decree, for an undisclosed amount payable by the Applicant to the Respondents. The Applicant in its supporting affidavit has not disclosed the amount of the decree against it, nor that the Respondents would be unable to pay back the decretal sum if paid to them, and the intended appeal turns out successful; nor has it demonstrated what substantial loss it would suffer if stay orders are denied.

17. Substantial loss in such an application is the cornerstone in various forms; and the Applicant is under an obligation to demonstrate such loss to the court’s satisfaction. Further the court ought to consider and address its mind to the question of whether to refuse stay would render the appeal nugatory. I have stated that the decree seems to be a money decree, for an unspecified amount. In the case National Industrial Credit Bank Limited Vs Aquinos Francis Wasike & another [2006] e KLR, the court held that it is upon the Applicant to prove substantial loss either through difficulty in satisfying the decree or loss occasioned by the inability by the adverse party to refund, if the appeal succeeds. I am afraid that the applicant by its failure to disclose relevant material facts to the court has failed substantively to demonstrate any substantial loss it may incur so as to render the appeal nugatory. See also Kenya Shell Limited Vs Kibiru & another [1986] KLR 410.

18. In the above case, the honourable Judge rendered that:“….An intended appeal does not operate as a stay … if there is no evidence of substantial loss, it would be a rare case when an appeal would be rendered nugatory by some other event….Therefore, without this evidence, it is difficult to see why the Respondents should be kept out of their money….” (emphasis mine)The applicant having failed to satisfy the court that execution or enforcement of the decree would render the intended appeal nugatory, then, an order of stay of execution cannot be granted. Parallel to the above, a successful litigant should not be deprived of its fruits of judgment in its favour without just cause.The court is obligated to dispense justice to both parties, upon considering the rival interests of the parties. I have done so.

19. For the foregoing, I find and hold that the Applicant’s application dated March 30, 022 succeeds.

20. Consequentlya.The Memorandum of Appeal shall be filed and served within 10 days this ruling.b.The Record of Appeal shall thereafter be filed and served within 60 days of this ruling.c.The applicants shall release to the Respondents through their Advocates 50% of the Decretal Sum within 45 days of this ruling.d.The balance of 50% of the decretal sum shall be deposited in a joint interest earning account of the parties Advocates at KCB, at a branch to be agreed upon within 45 days of this ruling.e.In default of any of the above conditions, the orders of stay of execution shall lapse automatically.

It is so ordered.Dated, Delivered and Signed in Nairobi this 15thday of December, 2022. J N MULWAJUDGE