[2018] KEHC 3114 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BOMET

MISC CIVIL APPLICATION NO. 12 OF 2018

DAVID RONO........................................................APPLICANT

VERSUS

RAHAB WANJIKU NDIRANGU

MARY WANJUGU MBUTHIA

Suing as Representatives of

FRANCIS MBUTHIA NDEGWA....................RESPONDENT

RULING

The Notice of motion application dated 6th February 2018 seeks the following orders

1. Spent

2. That the Honourable court be pleased to grant leave to the applicant to file appeal out of time and that the draft memorandum of appeal annexed be deemed as duly filed upon payment of requisite fees

3. That the court be pleased to grant stay of execution of decree in Bomet PMCC No. 9 of 2015 pending the filing of the appeal herein.

Counsel for the applicant relies on the case of Mwangi -V- Kenya Airways as cited in the case of APA Insurance Limited -V- Michael Kinyanjui Muturi 2016 eKLR where the court of appeal listed 4 grounds for taking into account on whether to grant execution of time.

(a) The length of delay

(b) The reason for the delay

(c) Possibly, the chances of the appeal succeeding if the application is allowed and

(d) The degree of prejudice to the Respondent if the application is granted.

On the issue of delay

It is submitted that though same was for 7 months there was a problem in communication between the Advocate and the client and that there was mistyping of the reference number of the fee. It is further submitted that the delay was as a result of administrative and beauracrative procedures.

Reliance is placed on the case of Richard Veji Shah and 3 others -Vs- Victor Maina Ngunjiri

That the power to grant leave to file appeal out of time as stipulated in section 79 a of the Civil Procedure Act is discretionary.

Chances of appeal being successful

It is submitted that the right to appeal should not be impeded as it is a constitutional right

Counsel relies on the case of Banco Arabe Espanol -Vs- Bank of Uganda cited in the case of APA Insurance Limited –Vs- Michael Kinyanjui Muturi 2016 eKLR

Degree of prejudice

It is submitted that the Respondent would not be prejudiced if leave to appeal out of time is granted. Counsel relies on the case of Factory Guards Ltd -Vs- Abel Vundi Kitungi. Richard Ngetich & Another -Vs- Fancis Vozena cited in the case of APA Insurance Ltd -Vs- Michael Kinyanjui Muturi 2016 eKLR where it was heed that no prejudice would be so great that would not be adequately compensated for an award of cash.

Issue of stay

Counsel cites Order 42 Rule 6 (2) which provides:- No order of stay of execution shall be made under Subrule (1) unless

(a) The court is satisfied that substantial loss may result to an applicant unless the order 5 made and that the application has been made without unreasonable delay, and

(b) Such security as the court orders for due performance such decree or order as may ultimately be binding on him has been given by the applicant.

It is submitted that should the money decree be satisfied it will not be able to be refunded the money. The Respondent has not stated that they are in a position to refund.

Respondents submission

It is submitted that the delay herein is inordinate.

That is alleged that it was caused by an undisclosed administrative bureaucratic procedures within the Defendants insurers.

Counsel relies in the case of Aviation Cargo Support Ltd –Vs- St Freight Services Ltd (2014) eKLR where it was held for the court to exercise its discretion in favour of an applicant the later must demonstrate that the delay in lodging the record of appeal is not inordinate and where it is inordinate the applicant must give plausible explanation to the satisfaction of the court why it occurred and what steps the applicant took to ensure that it came to court as soon as possible.

Counsel also relies on the case of Edward Njane Nganga & Another -Vs- Damaris Wanjiku 2016 eKLR where the Judge cited with approval the case of Port Reitz Maternity –Vs- James Karanja Kobia civil appeal no 63 of 1997 where it was held: The right of appeal must be balanced against an equally weighty right, that of the plaintiff to enjoy the fruits of the Judgment delivered in his favour. There must be a just cause for depriving the plaintiff that right.”

Analysis and Conclusion

The leave sought arises from a Judgment and decree issued on 5th July 2017 by Hon. Nyigei.

This application was filed in court on the 6th February 2018. This is more than seven months after the Judgment was entered and decree issued. This is clearly inordinate.

The reason for the delay is given as administrative and bureaucratic procedures in that there was a breakdown of communication between the Advocate and the client due to mistyping of the reference number of the concerned file. It is concluded that no action was done on the file until the execution proceedings were commenced by the plaintiff.

Seven months is a long time. It is more than half a year. It is inordinate delay. Bureaucratic and administrative structures are not reasonable explanations for delay which is more than half a year. The reasons given are not plausible.

I find no good reason to grant leave to file appeal out of time. There is no good reason to grant a stay of execution of decree in Bomet PMCC no 9 of 2015.

The application is dismissed with costs to the Respondents.

Ruling delivered dated and signed this 30th July 2018 in the presence of learned counsel for the applicant absent, Learned counsel for the Respondent absent. Court assistant Mr. Rotich.

M. MUYA

JUDGE

30/7/2018

Mr. Kigen holding brief Alunde present in the morning but absent in the afternoon when ruling delivered.

M. MUYA

JUDGE

30/7/2018