[2022] KEHC 2420 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISC. APPLICATION NO. E572 OF 2021

THE GUARDIAN COACH...................................................................................APPLICANT

-VERSUS-

DENNIS MAINDI OSIEMO..............................................................................RESPONDENT

RULING

1. This ruling is predicated on the Notice of Motion dated 23rdNovember, 2021 taken out by the applicant and supported by the grounds set out on its body and the facts stated in the affidavit of the Ms. Purity Wambui Waikwa. The applicant sought for an order for leave to appeal out of time against the judgment and decree delivered on 13thOctober, 2021 in Milimani CMCC No. 3068 of 2019 and a further order for a stay of execution of the aforementioned judgment pending the hearing and determination of the appeal. The applicant also sought for an order to the effect that she be allowed to provide a bank guarantee from Diamond Trust Bank as security for the decretal sum.

2. The respondent opposed the Motion by filing the replying affidavitsworn by Mr. Dennis Maindi Osiemo on 12thJanuary 2022.

3. The instant Motion was canvassed through oral argumentswhereby the parties’ respective advocates chose to rely on theaverments made in their respective affidavits.

4. I have considered the grounds laid out on the body of the Motion,the facts deponed in the rival affidavits and the brief oral arguments.

5. The orders being sought in the Motion are two-fold: first is theorder seeking for enlargement of time to appeal and for leave to appeal out of time against the impugned judgment and decree.

6. Section 79G of the Civil Procedure Act stipulates that an appealagainst the decision of a subordinate court shall be lodged within 30 days from the date of the decree or the order being appealed against. The provision further stipulates that an appeal can be admitted out of time where sufficient cause has been shown.

7. Moreover, under the provisions of Section 95 of the CivilProcedure Act and Order 50, Rule 5 of the Civil Procedure Rules, the courts have power to enlarge the time required for the performance of any act under the Rules even where such time has expired.

8. In the case of Thuita Mwangi v Kenya Airways Ltd [2003] eKLRthe Court of Appeal illustrated the conditions to be met in deciding whether to extend the period for filing an appeal out of time and which I shall address hereunder.

9. Under the first condition touching on length of delay, while it isapparent from the record that no copy of the impugned judgment was availed to this court, the parties are in agreement that the impugned judgment was delivered on 13thOctober, 2021 which is close a month and 2 weeks prior to the filing of the Motion. In my mind, while there has clearly been a delay in filing the Motion, I do not find the delay to be inordinate.

10. Concerning the reasons for the delay, the applicant explainedthat the delay was occasioned by the difficulty in the applicant’s counsel contacting the Applicant to inform them of the judgment and obtain the instructions.

11. Upon considering the explanation given by the applicant, I findthe same to be reasonable in the circumstances.

12. As relates to the condition on whether or not an arguable appealexists, it is the applicants’ assertion on the one hand that they have an arguable appeal which raises valid points of law and fact. The respondent on the other hand contends that the appeal has no chances of success.

13. Upon my perusal of the grounds of appeal raised in the draftmemorandum of appeal annexed to the Motion, I note that the appeal is challenging the finding of the trial court on quantum. I am therefore satisfied that the applicant has demonstrated arguable points of law and fact in their appeal.

14. Upon my perusal of the record, it is apparent that the judgmentwas entered in favour of the respondent herein and against the applicant. It therefore follows that the respondent is lawfully entitled to enjoy the fruits of his judgment. Suffice it to say that it would not be in the interest of justice to lock out the applicant who is aggrieved by the judgment of the trial court on damages. I therefore find it reasonable for the applicant to be given the opportunity of challenging the subordinate court’s assessment on damages on appeal.

15. The second prayer is for stay of execution of the decree pendingappeal, for which the guiding provision is Order 42, Rule 6(2) of the Civil Procedure Rules which sets out the conditions to be satisfied for such an order to be granted.

16. The applicants on their part are apprehensive that if the decretalamount is paid to the respondent, the likelihood of recovering the amount from the respondent should the appeal succeed is slim. The respondent is of the view that the applicants have not demonstrated by way of evidence the substantial loss they stand to suffer in the circumstances.

17. The question on who has the burden of proof on the issue ofrefund of the decretal sum was discussed by the Court of Appeal in the case ofNational Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLRwhen it held that:

“Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge…”

18. The respondent indicated that she is able to refund the fulldecretal sum in case the intended appeal succeeds. In the absence of anything to ascertain the respondent’s financial capacity to refund the decretal sum, I am satisfied that the applicant has reasonably demonstrated that she stands to suffer substantial loss if the order for a stay of execution is not granted.

19. Under the final condition which is the provision of security for thedue performance of the decree or order, the applicant stated that she is ready and willing to provide security by way of a bank guarantee. In retort, the respondent proposes that full the decretal sum be deposited in a joint interest earning account in the names of the two advocates of the respective parties.

20. In making an order for the provision of security, this court mustbalance the interest of the parties. In the present instance, it is noteworthy that the respondent has not shown any pressing need that would require payment of part of the decretal amount to him at this stage. It is also noteworthy that the respondent is not amenable to the provision of a bank guarantee.

21. In the end therefore, the Motion dated 23rd November, 2021 isfound to be meritorious and it is allowed, therefore giving rise toa grant of the following orders :

i. The applicants shall file and serve the memorandum of appeal within 14 days from this day.

ii. There shall be an order for stay of execution of the judgment and decree issued on 30th October, 2021 pending the hearing and determination of the intended appeal on the condition that the applicants deposit the entire decretal sum in an interest earning account in the joint names of the advocates or firms of advocates within 45 days from the date of this ruling in default of which the stay order shall lapse.

iii. Costs of the Motion shall abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF FEBRUARY, 2022.

........................

J. K. SERGON

JUDGE

In the presence of:

..................................... for the Applicant

.................................. for the Respondent