[2022] KEHC 14524 (KLR)

Ali v Aig Kenya Insurance Company Limited (Civil Case 184 of 2018) [2022] KEHC 14524 (KLR) (Commercial and Tax) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14524 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Case 184 of 2018

WA Okwany, J

October 13, 2022

Between

Jibril Konse Ali

Plaintiff

and

Aig Kenya Insurance Company Limited

Defendant

Ruling

1. In a ruling rendered on April 22, 2021, this court allowed the plaintiff/respondent’s application dated June 3, 2019 and directed the defendant/applicant herein to produce documents particularized in the notice to produce dated February 11, 2019.

2. Aggrieved by the said ruling, the defendant filed the application dated May 12, 2021 seeking orders that: -1. This honourable court be pleased to enlarge the time for the defendant to file this amended notice of motion application.2. This amended notice of motion application be deemed as having been filed within the prescribed period.3. This honourable court be pleased to grant leave to the defendant to appeal to the Court of Appeal against the ruling and orders of Hon Lady Justice Wilfrida A. Okwany dated and delivered on April 22, 2021. 4.In the alternative to prayer No 3 above, this honourable court be pleased to extend the period for the defendant’s compliance with the ruling and orders of Hon Lady Justice Wilfrida A. Okwany dated and delivered on April 22, 2021. 5.Upon the grant of leave to appeal further to prayer No 3 above, this honourable court be pleased to issue an order staying the execution and/or enforcement of the ruling and orders of Hon Lady Justice Wilfrida A. Okwany dated and delivered on April 22, 2021 pending the hearing and determination of the defendant's intended appeal to the Court of Appeal.6. Upon the grant of leave to appeal further to prayer No 3 above, this honourable court be pleased to issue an order staying any further proceedings in this suit pending the hearing and determination of the defendant's intended appeal to the Court of Appeal.7. Upon the grant of leave to appeal further to prayer No 5-3 above, this honourable court be pleased to issue an order staying any consequential proceedings arising from the ruling and orders of Hon Lady Justice Wilfrida A. Okwany dated and delivered on April 22, 2021 pending the hearing and determination of the defendant’s intended appeal to the Court of Appeal.8. This honourable court be pleased to issue any orders to meet the ends of justice.9. The costs of the application be provided for.

3. The application is brought under order 42 rule 6, order 43 rule 1(2) & (3), order 43 rule 2 and, order 50 rule 6, order 51 rule 1, 3 & 4 of the Civil Procedure Rules.

4. The application is supported by the affidavit of the defendant’s Senior Commercial Lines Claims Adjuster, Ms Linda Kaniaru, and is premised on the grounds that: -a.On June 4, 2019, the plaintiff filed a notice of motion application dated June 3, 2019, in which he sought an order for discovery to issue against the defendant to produce all of the documents listed in the plaintiff’s notice to produce documents dated February 11, 2019 and filed on February 12, 2019. b.By a ruling delivered virtually by this honourable court on April 22, 2021, Hon Lady Justice Wilfrida A. Okwany allowed the plaintiff's notice of motion application dated June 3, 2019. c.The consequence of the of the ruling is that the defendant was ordered to produce the documents particularized in the plaintiff’s notice to produce documents within 14 days of the ruling, failure to which the defendant's statement of defence filed in this suit will be struck out with costs. This period lapses on or about May 6, 2021. d.The defendant is aggrieved by the ruling and orders of the Hon Judge and has evinced its intention to appeal against the whole of the decision by filing a notice of appeal dated April 23, 2021 electronically on April 26, 2021. The defendant risks suffering substantial prejudice to its defence of this suit in view of the fact that the Hon Judge, in her ruling and orders aforesaid, issued an order for the defendant’s statement of defence to be struck out which was not sought by the plaintiff in his application.e.The defendant has partially complied with the ruling and orders of the Hon Judge of April 22, 2021 by supplying the plaintiff's advocates with the stocktaking lists of the plaintiff's Hardware dated January 26, 2015 prepared by Kenya Commercial Bank Limited, Moyale. This was the first document sought in the plaintiff's notice to produce documents dated February 11, 2019 and filed on February 12, 2019- despite already being in the record of this honourable court as document No x appearing at pages 228 to 233 of the plaintiff's list of documents dated May 8, 2018 and filed on May 10, 2018. f.Unless this amended notice of motion application is allowed as prayed and leave to appeal to the Court of Appeal granted, the defendant shall be denied an opportunity to challenge the Hon Judge’s ruling and orders of April 22, 2022. g.Unless this amended notice of motion application is allowed as prayed and stay of execution and/or enforcement of the Hon Judge’s ruling and orders of April 22, 2021 pending the hearing and determination of the defendant's intended appeal to the Court of Appeal granted, the defendant shall suffer substantial loss occasioned by the striking out of the defendant’s statement of defence as a consequence of the ruling and orders aforesaid.h.Unless this amended notice of motion application is allowed as prayed and stay of both further and consequential proceedings pending the hearing and determination of the defendant's intended appeal to the Court of Appeal granted, the defendant risks suffering prejudice if this suit is set down for hearing and proceeding undefended on account of the defendant's statement of defence being struck out. This is despite the defendant’s compliance with pre - trial case management conference directions.i.The defendant is ready, able and willing to comply with any conditions his honourable court may deem fit to grant for the due performance of its orders of April 22, 2021. j.The defendant's advocates applied to the court for the copy of the ruling on April 26, 2021. However, the copy was only made available on May 3, 2021. The amended notice of motion filed herewith has been brought without unreasonable delay in consideration of these circumstances.k.The defendant's advocates initially submitted their notice of motion application dated May 6, 2021, being the application now being amended through this amended notice of motion, for filing in the court’s e - filing portal on that same day of May 6, 2021. Unfortunately, that application of May 6, 2021 was not lodged for purposes of assessment and payment of filing fees as the e - filing portal system was down and non responsive. The notice of motion was only lodged filed on May 7, 2021, not more than a day later, when the system was fully functional.l.By virtue of the foregoing, the delay in filing the notice of motion application of May 6, 2021 and this amended notice of motion application, in the circumstances was unforeseen and unintentional owing to circumstances beyond the control of the defendant's advocates.m.It is in the interest of fairness and justice that in view of the foregoing circumstances this amended notice of motion application be allowed as prayed.

5. The respondent filed a replying affidavit in opposition to the application wherein he avers that the application does not meet the threshold for the granting of orders for stay of execution pending appeal. He further states that the defendant has not provided any justification for its partial compliance with the court’s order directing it to produce the documents identified in the notice to produce. It is the respondent’s case that the impugned order of April 22, 2021 has already materialized and that the defence stands struck out.

6. Parties canvassed the application by way of written submissions which I have considered. The issue that the court has to determine is whether the applicant is entitled to the orders sought.

7. On the prayer for the extension of time to enable the defendant file the present application, the applicant argued that this court has the discretion to extend time and that the delay in filing the application is not inordinate. The defendant explained that it was not able to file the application on time due to challenges in accessing the court’s e-filing portal.

8. In a rejoinder, the respondent argued that the applicant was indolent and that the court should therefore not exercise its discretion to extend time in its favour.

9. The Supreme Court laid down the principles governing extension of time in the case of Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others [2015] eKLR as follows: -“As regards extension of time, this court has already laid down certain guiding principles. In theNick Salatcase, it was thus held:“… it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for 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.“… we derive the following as the underlying principles that a court should consider in exercising such discretion: 1. extension of time is not a right of a party. it is an equitable remedy that is only available to a deserving party, at the discretion of the court;

2. a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the court;

3. whether the court should exercise the discretion to extend time, is a consideration to be made on a case- to- case basis;

4. where there is a reasonable [cause] for the delay, [the same should be expressed] to the satisfaction of the court;

5. whether there will be any prejudice suffered by the respondents, if extension is granted;

6. whether the application has been brought without undue delay; and

7. whether in certain cases, like election petitions, public interest should be a consideration for extending time”.

10. In George Kagima Kariuki & 2 others v George M. Gichimu & 2 others[2014] eKLR it was held that: -“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favorably exercisable.”

11. Similarly, in Stanley Kahoro Mwangi & 2 others v Kanyamwi Trading Company Limited [2015] eKLR the court was of the view that: -“A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favorably exercised.”

12. Guided by the above-cited authorities, I note that it was not disputed that application was filed outside the prescribed timelines. I however note that the delay in question was for only one day as the application, which ought to have been filed by May 6, 2021 was filed on May 7, 2021. The applicant explained that it encountered challenges in the court’s e-filing at the time of filing the application. I find that the one-day delay was not inordinate and that the explanation offered by the applicant is plausible. I therefore allow prayer for the enlargement of time to file the amended application and that the amended application be deemed as having been filed within the prescribed time.

13. Turning to the prayer for leave to appeal and for stay of these proceedings pending appeal, the applicant argued that it will suffer substantial injustice if it is not accorded an opportunity to defend the suit. The applicant further contended that the impugned ruling had the effect of summarily determining its substantive rights to its detriment. It was the applicant’s case that there was no specific opposition to the prayer for leave to appeal against the ruling.

14. On his part, the respondent argued that equity only favors the vigilant and not the indolent. The respondent noted that the defendant disregarded the court order by failing to produce stock lists that were in their possession.

15. The principles governing the granting of orders for stay of proceedings were discussed in the case of Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi (2014) eKLR. In the said case, the court identified the three conditions to be satisfied I order to obtain stay of proceeding as follows; the applicant ought to establish a prima facie arguable case, file the application expeditiously and establish sufficient cause, to the satisfaction of the court, that it is in the interest of justice to grant the orders sought.

16. On prima facie case, the applicant stated that the grounds of appeal raised on the draft memorandum of appeal touch on serious issues of which deserve judicial consideration. In Re Global Tours & Travel Ltd HCWC No 43 of 2000 Ringera, J (as he then was) held that: -“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering that matter, it should bear in mind such factors as the need for expeditious disposal of case, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.”

17. In the present case, it is clear that the impugned ruling required the defendant to produce certain documents within 14 days of the ruling failure of which the defendants defence would be struck out with costs. The defendant did not fully comply with the impugned order but instead, produced only some of the documents listed in the notice to produce documents. I note that the applicant has not explained why it has, to-date, not complied with the said order.

18. The applicant instead filed the instant application seeking to stay these proceedings pending the filing of appeal against the impugned ruling. While it is trite that the right to appeal is a fundamental right provided for under the Constitution, disobedience of a court order amounts to contempt of court that may disentitle the guilty party from benefitting from the court’s discretionary powers. The court’s power to stay proceedings is discretionary and may only be exercised in the interest of justice. An applicant seeking orders for stay of proceedings must also provide sufficient reasons to warrant the court’s exercise of its discretion. In Samvir Trustee Limited v Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997 it was held that: -“Every party aggrieved with a decision of the High Court has a natural and undoubted right to seek the intervention of the Court of Appeal and the court should not put unnecessary hindrance to the enjoyment and exercise of that right by the defendant. A stay would be overwhelming hindrance to the exercise of the discretionary powers of the court…”

19. In the instant case, I note that the applicant sought orders to extend the time within which to comply with the impugned ruling as an alternative prayer to the request for leave to appeal. It is however not clear if the applicant intends to actually comply with the said impugned order or if it will use the extension as a springboard to filing the appeal. Be that as it may, I find that the justice of this case will require the court to strike a balance between the interests of the plaintiff/respondent to an expeditious determination of his case and the defendant’s right to be heard.

20. Having regard to the findings and observations that I have made in this ruling, I issue the following orders.a.I hereby extend time and order that the application filed on May 12, 2021 be and is hereby deemed to have been filed on time.b.Stay of proceedings is hereby granted pending the hearing and determination of the appeal.c.Parties to bear their own cost.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 13TH DAY OF OCTOBER 2022. W. A. OKWANYJUDGEIn the presence of:Mr. Anyona or Kanjama for plaintiffNo appearance for defendantCourt Assistant- Sylvia