[2017] KEHC 2391 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

MISC APPLICATION NO. 563 OF 2016

BENSON KIMANJA......................................................... APPELLANT/APPLICANT

VERSUS

GEORGINA WAIRIMU MUCHUNGU.......................RESPONDENT/RESPONDENT

RULING

By a Notice of Motion dated 27th day of October, 2016, the Applicants moved the Honourable Court for orders that;

(a) The application herein be certified urgent and be heard ex parte in the first instance.

(b) The court be pleased to enlarge time within which to file the Memorandum of Appeal from the judgment of Milimani CMCC No 5178 of 2014 delivered on 23rd September 2016.

(c) There be a stay of execution of the Judgment in Milimani CMCC No 5178 of 2014 pending the hearing and determination of this Application.

(d) The costs of this application be in the cause.

The application is premised on the grounds set out on the body of the same and on the annexed affidavit of Sheila Obiayo dated 27th October, 2016.

The applicant avers that it is the interest of Justice that the time be extended to enable him be heard on appeal since the intended appeal is arguable. That judgment in Milimani CMCC NO 5178 of 2014 was delivered on 23rd September 2016 in the absence of the applicant and his Counsel but has since made efforts to get a copy of the same which is now available.

The applicant averred that he is apprehensive that execution may issue as there is no stay of execution in place and as such is praying that the same be granted as sought. It is averred that the respondent is a person of unknown means and should the decretal sum be paid out, the intended appeal would be rendered regulatory as he might not be able to refund the money should the appeal succeed.

The applicant avers that the delay in filling the Memorandum of appeal in time was occasioned by the court for its failure to supply the Appellant with a certified copy of the Judgment in due time. He avers that the delay is not intentional and it is in the interest of justice that the orders sought be granted as they would not prejudice the Respondent.

The applicant further averred that he is ready and willing to furnish an insurance bond or bank guarantee as security in court for the due performance of the decree.

2. The respondent opposed the application through an affidavit sworn by Lucy K. Waweru advocate dated 15th November, 2016.

The respondent averred that though the applicant filed a defence in the primary matter Milimani CMCC NO 5178 of 2014, he did not call any evidence and therefore did not rebut the evidence of the respondent at the lower court. That the only issue that can be canvassed on appeal is the issue of the damages awarded and this is the reason the draft memorandum of appeal focuses on the issue of quantum.

It is averred that the respondent suffered severe injuries in the accident on the 13th September 2011 and was hospitalized severally and spent ksh. 534,377 in treatment which amount was awarded as special damages by lower court.

The respondent further contended that the applicant want to create a false impression that he was not aware of the judgment date yet his advocate had in fact been served with a judgment notice but failed to attend court.

It was submitted that the respondent would be greatly prejudiced if the orders sought are granted as no good reasons have been given as to why the applicant had not filed appeal on time.

The respondent urged the court to balance the interests of both parties and order the release of half the decretal sum to the respondent with the remaining half being put in a joint interest earning account in the name of both parties’ Counsels.

This court has duly considered the application, and the submissions by both parties. The applicant has sought two main orders in the application. One is for the court to enlarge the time within which to file the Memorandum of Appeal. The other prayer is for stay of execution pending the outcome of the appeal. The respondent on the other hand asks that the court balance the interests of both the parties and order that half the decretal sum plus costs be released to them and the reminder be deposited in a joint interest earning account in the name of both parties Counsels.

The court will first deal with the issue of stay of execution which is governed by Order 42 Rule 6 of the Civil Procedure Rules. Under this Order an applicant has to satisfy the court that;-

1. It will suffer substantial loss if the stay is not granted and that such an application has been brought without unreasonable delay.

2. Such security as the court orders for the due performance of such decree or orders as may ultimately be binding on him has been given.

When considering substantial loss and where one seeks to stay execution, the financial position of the Applicant and that of the Respondent becomes an issue. The court has to balance the interest of the Applicant who is seeking the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the Respondent who is seeking to enjoy the fruits of her judgment. See Kenya Shell Ltd Vs Kibiru & another (1986) KLR 410.

The applicant has shown concern over the respondent’s ability to refund the decretal sum in the event the appeal succeeds. The law in this case is that the Applicant is expected to swear upon reasonable grounds that the Respondent will not be in a position to refund the decretal sum. In that case the legal burden remains with the Applicant while the evidential burden would then be shifted to the Respondent to show that he is in a position to refund the decretal sum. The respondent in this case has not tendered any evidence as a rebuttal to the assertion that he may not have the means to refund the decretal sum. This is supported by the case of Recoda Freight and Logistic Ltd Vs Elishana Angote Akeyo [2015] eKLR where Justice C. W Githua opined as follows;

“I wholly concur with Kasango J in Kenya Orient Insurance Co. Ltd V Paul Mathenge Gichuki Civil Appeal No 40 of 2014 eKLR when she held that when an applicant pleads in an application such as the current one that the respondent is not possessed of means to refund the decretal amount if the appeal succeeded, the burden of proof immediately shifts to the respondent to prove that he has the capacity to refund the decretal sum if the pending appeal was determined in the applicants favour. See also ABN AMRO Bank N. Vs LE Monde foods Limited Civil Application no. Nai 15 of 2002. In this case, the respondent chose not to respond to the applicants claim that his financial means were doubtful. He therefore failed to discharge the evidential burden shifted to him by the applicant of proving that he had income or property that would enable him refund the decretal sum in the event that the appeal succeeded.

In the case of Ilrad Vs Kinyua, (1990) KLR 403 at page 406 it was similarly held that;

“We have considered what Mr. Sehimi has said. However, we must “Observe that the onus was upon the respondent to rebut by evidence of the claim that the intended appeal if successful would be rendered nugatory on account of his (respondent’s) alleged impecunity.”

On the issue of whether the application was brought without unreasonable delay, the first thing of note is that while judgment was delivered on the 23rd September, 2016, the application was filed on October, 27th 2016. This is a period of 34 days; slightly over a month. The explanation the applicant has given for the delay is that Counsel was not aware of the judgment due to an inadvertent mistake. In the interest of justice the court therefore finds that the delay was sufficiently explained.

For security, the Applicant herein has indicated his willingness to deposit security. In view of the foregoing, the applicant has satisfied the requirements of Order 42 Rule 6.

Regarding the respondent’s prayer that half the decretal sum be paid out and the remainder be deposited in a joint savings account, my position is that the Respondent has failed to discharge the evidential burden of proving that she is in a position to repay the decretal sum as held in the case of ABN AMRO Bank N.V Vs Monde foods limited Civil Application no. Nai 15 of 2002 above. She is therefore not entitled to to the release of part of the decretal sum.

The final issue is whether leave to file appeal out of time should be granted. On this issue the court is guided by the principles laid down in Thuita Mwangi V Kenya Airways Ltd, (2003) eKLR thus:

“it is now well settled that the decision whether or not to extend time for appeal is essentially discretionary. It is also well settled that in general the matter which this court takes into account in deciding whether to grant an extension of time are; first, the length of the delay; secondly, the reason for the delay; and thirdly (possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.”

An applicant ought to give sufficient explanation for the delay, and the court ought to consider if, whether even with such delay justice can still be done. The Applicant explained that the delay was occasioned by an inadvertent mistake in filling away the judgment notice as it was written under a wrong reference number. The court finds that the delay is excusable since the respondent can be compensated by way of costs and justice can still be done. The prayer for extension of time is therefore allowed.

In the result, the following orders are made:-

a) Leave is hereby granted to the Applicant to file an appeal out of time. The appeal to be filed within 14 days from the date of this ruling.

b) A stay of execution of the judgment in Milimani CMCC No. 5178 of 2014 is hereby granted pending the hearing and determination of the intended appeal on condition that the whole decretal sum be deposited in a joint account to be opened by both counsels. The deposit to be made within 30 days from the date of this ruling failing which the stay order shall automatically lapse.

c) Costs of the application shall abide the outcome of the Appeal.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 3rdDay of November, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………. For the Appellant/Applicant

…………………………. For the Respondent/Respondent