[2022] KEHC 9813 (KLR)

Dreamline Express Ltd v Awino (Miscellaneous Civil Application E063 of 2021) [2022] KEHC 9813 (KLR) (5 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9813 (KLR)

Republic of Kenya

In the High Court at Makueni

Miscellaneous Civil Application E063 of 2021

GMA Dulu, J

July 5, 2022

Between

Dreamline Express Ltd

Appellant

and

Dorothy Awino

Respondent

Ruling

1. Before me is an application dated July 26, 2021 filed by the applicant/appellant through counsel for extension of time to file appeal, as well as for stay of execution pending determination of appeal – relating to Kilungu CMCC No. 305 of 2018.

2. The application has grounds on the face of the Notice of Motion that the application was made timely, and that the applicant will suffer substantial loss if stay orders are not granted.

3. The application was filed with a supporting a affidavit sworn on July 26, 2021 by Elizabeth Wanjiru advocate for the applicant, in which it was deponed that judgment was delivered herein on April 30, 2021 and the respondent awarded Kshs.183,550/= as damages based on a finding of 100% liability, and that the applicant intends to appeal, but the time to appeal has lapsed.

4. The application has been opposed through a replying affidavit sworn by the respondent on August 13, 2021 in which it is deponed that if stay of execution is granted, then half of the decretal amount be paid to the respondent.

5. The application was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by Kimondo Gachoka advocates for the applicants and those filed by Waiganjo Wachira & company for the respondents.

6. With regard to leave to appeal out of time, the respondent’s counsel has relied on the case of Gerald M’Limine v Joseph Kangangi [2009] eKLR to argue that the appeal be filed first. In my view, section 79G of the Civil Procedure Act (Cap.21), does not specifically state that the appeal has to be filed first. The section merely envisages that the intended memorandum of appeal be part of the documents filed in the application.

7. In the present case, I have seen the draft Memorandum of Appeal and it raises triable issues. In view of the Constitutional principles on fair hearing in Article 50 of the Constitution and the requirements for courts to be more inclined to administer substantive justice under Article 159, I will grant leave to the applicant to appeal outside the 30 days period allowed under section 79G of the Civil Procedure Act.

8. With regard to the request for stay of execution pending appeal, I note that the grounds of the intended appeal are mainly on quantum of damages. In my view, the applicant might stand to suffer substantial loss only if the whole decretal amount is paid out and not refunded if the appeal succeeds. I will thus grant stay, but subject to the applicant paying part of the decretal sum.

9. As for provision of security by the applicant, I note that they have proposed a bank guarantee from DTB Bank. In my view, payment of part of the decretal sum to the respondent will be adequate security.

10. Consequently, I order as follows –1)I grant extension of time to the applicant to file appeal. The appeal will be filed within 30 days from today.2)I grant stay of execution of judgment or decree pending determination of appeal, but subject to the applicant paying the respondent through counsel part of the decretal amount Kshs.70,000/= within 60 days from today.3)If the applicant does not comply with any of the time frames set in (1) and (2) above, the stay of execution granted herein will automatically lapse and have no effect.4)The costs of the application herein are awarded to the respondent as no appeal has yet been filed.

DELIVERED, SIGNED & DATED THIS 5TH DAY OF JULY, 2022, VIRTUALLY AT MAKUENI.GEORGE DULUJUDGE