[2022] KEHC 15813 (KLR)

Abyssinia Iron and Steel Limited & another v Toro (Civil Appeal E315 of 2022) [2022] KEHC 15813 (KLR) (Civ) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15813 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E315 of 2022

JN Mulwa, J

December 1, 2022

Between

Abyssinia Iron and Steel Limited

1st Appellant

Jacob Muthengi Munyao

2nd Appellant

and

Thomas Mugo Toro

Respondent

(Originating from CMCC Number 319 of 2020)

Ruling

1. The appellants filed the application dated May 18, 2022 seeking two orders: -i.Enlargement of time upon which they may file an appeal against the trial court’s ruling delivered on the 4th of March 2022 in CMCC Number 319 of 2020, and annexed a draft Memorandum of Appealii.An order for stay of proceedings in the trial court’s matter CMCC Number 319 of 2020 pending hearing and determination of the intended appeal.

2. The application is grounded on the grounds stated at the supporting affidavit of the claims officer of the Insurer of the accident motor vehicle, Jubilee Insurance Company, one Patience Moraa, sworn on the 18th of May 2022, stating that the ruling of March 4, 2022 dismissing the applicants application for leave to serve a witness statement that had been filed out of time denied the applicant a chance to defend the case against its insured and being aggrieved, filed the instant appeal, but could not file the record of appeal as the proceedings and certified copy of the ruling were delayed, hence, if the orders sought are denied, that would condemn the applicants unheard.

3. The application is predicted on the provisions of order 51 rule 1, order 50 rule 1 and order 42 rule 6 of the Civil Procedure Rules, 2010.

4. In opposing the application, the respondent filed some generalized grounds of opposition dated June 6, 2022 stating that the application is frivolous, defective, a nullity and an abuse of the court process. He urged the court to dismiss the application. Together with the affidavits in support and in opposition to the application, the rival parties filed written submissions dated July 28, 2022 and September 6, 2022 respectively.

5. Upon consideration of the above, two issues arise for determination:a.Whether the applicant should be granted leave to file appeal out of time;b.Whether an order of stay of proceedings in the trial court pending hearing and determination of the appeal should be granted.

6. Section 79G of the Civil Procedure Act provides for timelines for filing an appeal from a subordinate court to the High Court as 30 days. There is also a proviso that time may be extended if the applicant sufficiently explains to the court’s satisfaction the reasons for the delay.

7. In the instant application, the delay is for one month and 13 days, for reasons that the proceedings were not provided in good time. A draft memorandum of appeal is annexed to the supporting affidavit.

8. In the first instance, it is prudent to state that the power to extend time to file an appeal is purely an exercise of discretion by the court, but upon consideration of the following factors, among others;a.Period of delayb.Reasons for the delayc.Arguability of the appeald.Degree of prejudice that could be suffered by the respondent if extension is granted.e.Importance of the matter/litigation of issue.

9. See the cases Mwangi v Kenya Airways Limited [2008] e KLR cited in Samuel Mwaura Muthimbi v Josephine Wanjiru Ngugi & Another [2018] e KLR, and Ezekiel Mule Musembi V H Young & Company (EA) Limited [2018] e KLR for the above proposition.

10. The impugned ruling of the 4th of March 2022 was delivered in an interlocutory stage before the hearing of the case could be completed. By the ruling the applicants allege to have been denied a chance to defend their case. There is no dispute that such a ruling could cause the defendants/applicants prejudice as their right to hearing enshrined under article 50 of the Constitution was curtailed.

11. The order seeking leave to serve an already filed witness statement was a procedural technicality which if left unchanged would cause loss, damage and prejudice to the applicant contrary to the objectives stated at sections 1A, 1B and 3A of the Civil Procedure Act.

12. The delay of one month in my view is not inordinate, though the court is aware that there is no measure as to what delay is inordinate. Each case ought to be considered upon its peculiar circumstances. The reason for the delay in the instant case has been sufficiently explained to the courts satisfaction.

13. As to the prejudice to the applicant if the orders are denied, it is obvious that should the intended appeal be successful, it would be a total waste of judicial time and resources, as the case may then be reopened and tried afresh, taking more time of the scanty and precious time to the judicial officers.

14. On the arguability of the appeal, I am satisfied by the grounds stated thereto Samuel Mwaura Muthumbi case (Supra). See also the holding in Vegapro Kenya Limited v Susan Wanja [2017] e KLR and Nicholas Kiptoo Arap Salat v IEBC & others [2014] e KLR in cited by the respondent in support of its arguments.

15. I agree with the guidelines stated therein that extension of time is not a right of a party; and only available to a deserving party at the court’s discretion, upon laying a basis to the satisfaction of the court. I have stated above that no prejudice would be caused to the respondents if the orders sought are allowed.

16. It is trite that rules of procedure are hand maidens and not mistresses of justice as rendered in the case Microsoft Corparation v Mitsumi Computer Garage Limited & another (2001) KLR at page 470. It is also trite that deviations from and lapses in form and procedure that do not go to the jurisdiction of court, or the root of the dispute, that do not occasion prejudice or miscarriage of justice to the opposite party ought not be allowed as to shadow the dispensation of substantive justice.

17. To that extent then, I am persuaded to extend time, and allow the applicants to file an appeal out of time within timelines appearing here below.

18. Having granted the above prayer, it would serve no purpose if the orders sought in prayer number 3 are denied.

19. Orders of stay of execution are premised upon the applicant satisfying compliance of conditions set out under order 42 rule 6 of the Civil Procedure Rules being: -1. Demonstration of substantial loss to the applicant if stay is denied2. Security for due performance of the decree3. Arguability of the appeal

20. I have rendered myself on the above.The importance of the case at hand cannot be underrated; being a road accident case wherein the plaintiff therein seeks damages for injuries sustained in the accident. The applicants have not averred that the respondent is financially unable to pay any amount of money should the appeal not be successful.

21. I have no reason, nor does the respondent aver that Jubilee Insurance Company Limited would be handicapped in that regard.For the foregoing, the application dated May 18, 2022 is allowed, upon the following: -1. The applicant shall file a memorandum of appeal and serve within 7 days of this ruling.2. The trial courts proceedings in CMCC No 319 of 2020 are hereby stayed pending hearing and determination of the appeal.3. The appellants/applicants shall file the record of appeal within 60 days of this ruling.4. Costs of this application shall abide the outcome of the appeal.

Orders accordingly.

DATED, DELIVERED AND SIGNED ON THIS 1ST DAY OF DECEMBER 2022. J. N. MULWAJUDGE