[2022] KEHC 15397 (KLR)

Dreamline Express Ltd v Mungai (Civil Appeal E138 of 2022) [2022] KEHC 15397 (KLR) (15 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15397 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal E138 of 2022

RN Nyakundi, J

November 15, 2022

Between

Dreamline Express Ltd

Applicant

and

Peter Mungai

Respondent

(Being an Appeal from judgment of Hon. C. Menya (SRM) in Eldoret CMCC NO.185 OF 2019 delivered on the 30th August, 2019)

Ruling

Coram: Hon. Justice R. NyakundiKimondo Gachoka & CO.Adv for the appellantKeter Nyolei & CO. Adv for the respondent 1. The applicant filed a Notice of Motion dated 3rd October 2022 seeking the following orders;1. That this Application be certified urgent, service be dispensed with thereof and the same be heard ex parte in the first instance.2. That the Honourable Court be pleased to extend time for lodging of a Memorandum of Appeal against the Judgment of the Hon. C. Menya made on 30th August 2022 in Eldoret CMCC185 of 2019 Peter Mungai v Dreamline Express Ltd.3. That the Memorandum of Appeal dated 3rd October 2022 be deemed as properly filed.4. That pending the hearing and determination of the application herein, there be a stay of execution of the judgment made on 19th August 2022 in Eldoret CMCC 185 of 2019 and of all subsequent orders entered against the appellant/applicant emanating therefrom.5. That pending the hearing and determination of the appeal herein, there be a stay of execution of the judgment made on 30th August 2022 in Eldoret CMCC 185 of 2019 Peter Mungai v Dreamline Express Ltd and of all subsequent orders entered against the appellant/applicant emanating therefrom.6. That pending the hearing and determination of the intended appeal and under the Applicant herein do avail security by way of Bank Guarantee from Family Bank for the whole judgment sum of Kshs. 896,550/-.7. That the costs of and incidentals to this application abide the result of the Appeal.

2. The application is premised on the grounds set out therein and the contents of the supporting affidavit.

Applicant’s Case 3. The applicant’s case is that judgment was delivered in Eldoret CMCC No. 185 of 2019 on 30th August 2022 whereby the Plaintiff was awarded a Net Award Kshs. 896,550/- plus costs and interest. The Appellant/ Applicant being dissatisfied with the Judgment has just instructed its Advocates to institute an Appeal against the said judgment. The judgment was set to b& delivered on 19/8/2022, however they were informed that the same would be delivered on notice. It was delivered on 30/8/2022 in their absence and they were not aware of the same until the first week of September when they perused the court file.

4. The Appellant together with his insurer deliberated on the same and were only able to issue instructions to Appeal the said judgment on Friday 28th September 2022. The time period in which the Judgment dated 30th August 2022 can be appealed according to statute lapsed on 28th September 2022 hence the need to seek an extension of time within which to lodge this instant appeal.

5. The applicant cited section 79G of the Civil Procedure Act and submitted that the delay period of 6 days in filing the appeal is not inordinate. It relied on the case of Mombasa HCCA no 120 of 2020 Paul Kiriga Mwanganyi v Kenya Wildlife Services & Another (2021) in support of this submission.

6. The applicant contended that substantial loss will occur if the decretal sum of Kshs. 896,550/= (Eight Hundred and Ninety-Six Thousand Five Hundred and Fifty Only) is paid to the respondent. The Respondent has not demonstrated that he will be able to pay this sum back to the applicants in the event the applicants' appeal is successful. The Respondent in their response did not attach any evidence of income to their response. The burden of proof as to whether the Respondent will be able to repay the decretal sum lies with the Respondent.

7. The judgement in this matter was delivered on 30th August 2022 and the Applicant herein filed this instant application on the 4th October 2022 for the orders sought. The application was therefore filed timeously. Further, the appeal is arguable and the respondent will not be prejudiced by the orders sought. It is willing to abide by such reasonable stay terms as the court may order in the interest of both parties.

Respondent’s Case 8. In opposing, the said application, the respondent submission is grounded on among others. That the application is bought in bad faith to prejudice and embarrass the respondent

That the applicant has shown no grounds to warrant issue of stay orders neither has he shown any prejudice he shall suffer.

That the applicant is guilty of laches and the delay ought to work in favour of the Respondent.

That the applicant has not met the threshold implied by law by law in seeking stay pending appeal.

9. The respondent cited Order 42 rule 6 and submitted that the applicant has not demonstrated substantial loss that would occur. Further he contended that he is a man of substance and dependable, there exists no justification that he lack capacity of repayment should the appeal be successful. Where the allegation is that the respondent will not be able to refund the decretal sum the burden is upon the applicant to prove that the respondent will not be able to refund to the applicant any sums paid in satisfaction of the decree as held in Caneland Limited and 2 others v Delphis Bank Limited. Civil application no. NGI344 OF 1999.

10. It is his contention that the applicant intends to delay the fruits of the judgment. However, if the application is allowed the respondent seeks that it be in the condition that the applicant pays Two Thirds of the decretal sum to the respondent and deposit the other amount in a joint interest earning account in the names of the advocates of both parties.

Issues for Determination1. Whether the court should allow the application for stay of execution2. Whether the court should allow extension of time to file the appeal Whether the court should allow the application for stay of execution 11. Order 42 Rule 6 of the Civil Procedure rules provides;“No order for stay of execution shall be made under sub rule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant."Therefore, the applicant must satisfy the court that; The application has been made without undue delay.

The applicant will suffer substantial loss

Security.

Whether the application has been made without undue delay 12. The judgment in this matter was delivered on 30th August 2022. The instant application was filed on 4th October 2022. I note that the trial court granted stay of execution for 30 days. In the premises it is my view that the delay was not inordinate.

Substantial Loss 13. The judgment is for a decretal sum of Kshs. 896,550/-. The applicant is apprehensive that the respondent will be unable to refund the decretal sum if the appeal succeeds. In Kenya Posts & Telecommunications Corporation v Paul Gachanga Ndarua (2001) eKLR a similar scenario was discussed as follows:-“... Of course, ordinarily the burden was on the Corporation to show that were its appeal to succeed, the success would be rendered nugatory because the respondent would be unable to restore the decretal sum if that sum was immediately paid out to respondent immediately. But in a case such as this where it is alleged that the respondent has no known assets, the evidential burden must shift to him to show that he has assets from which he can refund the decretal sum. That must be so because the property a man has is a matter so peculiarly within his knowledge that an applicant such as the Corporation may not reasonably be expected to know them. He did not do so. An undertaking to give security by way of a bank or insurance bond is, in the circumstances of this matter, not sufficient.”

14. The respondent has not provided any evidence that he is a man of means. He has not filed an affidavit of means or any evidence to dispute that he will be unable to refund the sum if the appeal succeeds.

Security 15. The applicant is willing to provide security in form of a bank guarantee.

16. I have considered the application and the submissions of the parties and grant the application on condition that the applicant provide a bank guarantee for the decretal amount or in the alternative, deposit half the decretal sum in a joint account in the names of the parties’ advocates.

Whether the court should allow extension of time 17. Section 79G of the Civil Procedure Act provides;“Every appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against excluding from such period anytime which the lower court may certify as having been requisite for preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal."

18. When considering an application such as the instant one, has unfettered discretion; and therefore, need only concern itself with whether justifiable cause has been shown to warrant such exercise of discretion. For this reason, the principles laid down by the Supreme Court in Nicholas Kiptoo Korir arap Salat v IEBC & 7 Others[2014] eKLR are pertinent; namely:“The underlying principles a court should consider in exercise of such discretion include:1. Extension of time is not a right of any 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 for 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 a case to case basis;4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;5. whether there will be any prejudice suffered by the Respondent if the extension is granted;6. Whether the application has been brought without undue delay.”

19. The same principles were enunciated in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, the Court of Appeal held that:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters 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; 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.”

20. Accordingly, for purposes of determining whether the applicant is entitled to the discretion of this Court, I have considered the application for extension of time to appeal under the following parameters: whether there is a good and reasonable explanation for the delay;

whether the application has been brought without undue delay;

whether the proposed appeal is arguable, and

whether any prejudice will be suffered by Respondent.

21. The applicant’s explanation is that the judgment was to be delivered on 19th August 2022 but the same was later developed on Notice on 30th August 2022 in their absence and they were therefore unaware.

22. The application was filed six days after the lapse of the stay granted by the trial court and therefore the application has been brought without undue delay. I have considered the grounds of appeal and it is my view that the applicant has an arguable appeal. The respondent will not suffer any prejudice if the appellant is allowed to file the appeal out of time.

23. In the premises the appellant is granted orders to file the appeal out of time and the appeal is deemed as timeously filed.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 15TH DAY OF NOVEMBER, 2022. ............................R. NYAKUNDIJUDGE(particulars withheld@gmail.com, particulars withheld@kglaw.co.ke)