[2022] KEHC 9884 (KLR)

Four EM Transporters Co. Ltd v Kitonyi (Miscellaneous Civil Application E041 of 2021) [2022] KEHC 9884 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9884 (KLR)

Republic of Kenya

In the High Court at Makueni

Miscellaneous Civil Application E041 of 2021

GMA Dulu, J

July 21, 2022

Between

Four EM Transporters Co. Ltd

Applicant

and

Augustine Musembi Kitonyi

Respondent

Ruling

1. Before me is an application by way of Notice of Motion dated April 29, 2021 brought under section 3A, 79G and 95 of the Civil Procedure Act (Cap. 21), and Order 22, Rule 22, Order 50 Rule 4, 6 and 7, Order 50 Rule 6, and Order 51 Rule 1 and 3 of the Civil Procedure Rules 2010.

2. The application has six (6) prayers, some of which have been spent as follows –1. (Spent)2. That the court be pleased to order stay of execution of the judgment delivered by the trial court on March 16, 2021 in Civil Suit No. CMCC 31 of 2020 pending hearing and determination of this application and the intended appeal.3. That the court be pleased to grant leave to the applicant to appeal out of time against the judgment of Hon. Mwendwa – Resident Magistrate Court in Tawa Civil Suit No. CMCC 31 of 2020 delivered on March 16, 2021. 4.(Spent).5. That the appellant/applicant be allowed to furnish the court with bank guarantee as security pending the hearing and determination of the intended appeal and the instant application.6. That the costs of this application abide the outcome of the appeal.

3. The application has grounds on the face of the Notice of Motion that judgment had been delivered on 100% liability against the applicant and that the respondent was awarded Kshs.180,000/= general damages, and Kshs.19,750/= special damages instead of Kshs.17,200/= (being Kshs.7,200/= pleaded in the plaint and police attendance Kshs.10,000/=), plus costs and interest and that the 30 days period for filing appeal had lapsed. It is also a ground that the magistrate did not consider the applicant’s evidence and submissions in assessing damages, and that the delay in filing appeal was occasioned by delays in the extraction of the judgment by counsel.

4. The application was filed with a supporting affidavit sworn on April 29, 2021 by Kevin Ngure the Legal Officer of Directline Assurance Company Ltd, which amplifies the grounds of the application.

5. The application has been opposed through a replying affidavit sworn by Augustine Musembi Kitonyi, the respondent, on May 17, 2021, in which it is deponed that the application is fatally defective, that it does not satisfy the conditions in Order 42 Rule 6(2) of the Civil Procedure Rules, and that the application has been brought after a long delay, and lastly, that the bank guarantee proposed as security is not proof of availability of funds.

6. The application was canvassed through filing of written submissions. In this regard, I have perused and considered the written submissions filed by Kitoo & company advocates for the respondent. I note that though the applicant’s counsel was granted adequate opportunity from July 2021 to file submissions, he had not filed any submissions by the time of preparing this ruling.

7. This being an application for leave to file appeal out of time, it is governed by the provisions of section 79G of the Civil Procedure Act (Cap. 21), which states as follows –“79G. Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time 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 on time”.

8. In the present case, judgment was delivered on March 16, 2021 and this application filed on April 30, 2021, a period of about 1 ½ months. It was a period of more than 30 days. Other than the filing of the application, the applicant and his counsel have not filed any submissions in support of their request for extension of time to file appeal.

9. Since the burden is on the applicant to satisfy this court that he has good and sufficient reason for the delay in filing appeal, and the applicant failing to file submissions, in my view, the applicant has failed to discharged the burden of establishing good and sufficient reason to entitle this court to exercise its discretion, to enlarge time for filing appeal.

10. I thus decline to enlarge time for filing appeal herein.

11. With regard to the request for stay of execution of judgment or decree pending appeal, in my view, once this court has come to the conclusion as above, that it will not enlarge time to file appeal herein, it is not worthy considering the merits of the request for stay of execution of decree pending appeal, as granting stay will be a futile exercise since there will be no appeal which I will thus also dismiss the request for stay of execution of decree or judgment pending determination of appeal. The application is thus for dismissal.

12. As for costs, they will follow the court’s dismissal of the application, thus costs are awarded to the respondent.

13. Consequently, I dismiss the application herein for enlargement of time to appeal, and for stay of execution of decree pending appeal. I award the costs of the application to the respondent.

DELIVERED, SIGNED & DATED THIS 21ST DAY OF JULY, 2022, IN OPEN COURT AT MAKUENI...............................GEORGE DULUJUDGE