[2022] KEHC 1452 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISC. CIVIL APPLICATION NO. E384 OF 2021

JUDY WANGARI MWANGI.....................................1ST APPELLANT/APPLICANT

REUBEN MBURU KAMANDE...............................2ND APPELLANT/APPLICANT

-VERSUS-

JANE WACHUKA NG’ANG’A...........................................................RESPONDENT

RULING

1. This ruling is the product of the Notice of Motion dated 10thAugust, 2021 taken out by the 1stand 2ndappellants/ applicants and supported by the grounds set out on its body and the facts stated in the affidavit of the 2ndapplicant. The orders being sought therein are for leave to appeal out of time against the ruling delivered on 28thJanuary, 2016 in Milimani CMCC NO. 704 OF 2015 and a further order for a stay of execution of the interlocutory/default judgment entered on 5thMay, 2021 and consequent decree issued on 9thJuly, 2015 in the above suit, pending the hearing and determination of the appeal.

2. The respondent resisted the Motion by way of the replyingaffidavit sworn byBeatrice Muriithi, Legal Officer of Jubilee Insurance Company Limited (“the insurer”) on 30thNovember, 2021.

3. At the interparties hearing of the instant Motion, the parties’respective advocates relied on the averments made in the respective affidavits.

4. I have considered the grounds laid out on the body of theMotion; as well as the facts deponed in the supporting andreplying affidavits respectively.

5. A brief background of the matter as derived from the record andthe averments made by the parties is that the respondent instituted the afore-cited suit against the applicants arising out of the tort of negligence and relating to a road traffic accident involving the motor vehicle registration numbers KBQ 982A and KAZ 827M belonging to the respondent and the applicants respectively.

6. Going by the averments made by the parties, an interlocutoryjudgment was entered in favor of the respondent and against the applicants on 5thMay, 2015 for failure to file their statement of defence in good time.

7. Thereafter, the applicants filed the application dated 29th July,2015 and sought to have the interlocutory judgment set aside but which application was dismissed by the trial court vide the ruling delivered on 28thJanuary, 2016. The applicants now intend to challenge the ruling on appeal.

8. From a reading of the instant Motion it is evident that theorders sought therein are two-fold. The first is the order seeking for leave to appeal out of time against the impugned ruling.

9. The provisions of Section 79G of the Civil Procedure Act areclear that the timelines for lodging an appeal against the decision of a subordinate court are within 30 days from the date of the decree or the order being appealed against. Furthermore, under the provisions ofSection 95of theCivil Procedure ActandOrder 50, Rule 6of theCivil Procedure Rules, the courts have discretionary power to enlarge the time required for the performance of any act under the Rules even where such time has expired.

10. In the case of Thuita Mwangi v Kenya Airways Ltd [2003]eKLRthe Court of Appeal developed various conditions to offer guidance in deciding whether to extend the period for filing an appeal out of time and which I will address hereunder.

11. The first condition concerns the length of delay. This conditionwas not addressed by the applicants in their Motion. In retort, the respondent states that the Motion is an abuse of the court process and a waste of the court’s time.

12. Upon my perusal of the record, I note that none of the partiesavailed a copy of the impugned ruling for this court’s reference. Nevertheless, it is apparent that the ruling was delivered on 28thJanuary, 2016 which happens to be over four (4) years ago, in relation to the time of brining the Motion. In my view therefore, there has been a prolonged delay in bringing the instant Motion.

13. Concerning the reason(s) for the delay, it is the applicants’assertion that the delay was occasioned by their lack of awareness that the ruling had been delivered back in 2016 and that they only came to learn of the existence of the ruling in July, 2021 upon perusal of the court file by their advocate. In contrast, the respondent avers that the explanation given for the delay is not valid or reasonable.

14. Upon taking into account the aforementioned averments, thereis nothing to indicate that the applicants whether by themselves or through their advocate actively followed up on the progress of their application in order to ascertain the date of delivery of the ruling.

15. Furthermore, there is no credible explanation as to why theapplicants and/or their advocate had to wait four (4) years in order to discover that their application had been dismissed and even upon making such discovery, waited until the month of August, 2021 to bring the instant Motion.

16. In view of the foregoing circumstances, I am not satisfied thatthe explanation offered by the applicants is reasonable.

17. On the condition touching on whether an arguable appeal exists,the applicants submit that their appeal essentially lies against the existence of the interlocutory judgment which hinders them from defending the suit on merit and in turn impedes their right to a fair trial envisaged under Article 50 of the Constitution. In response, the respondent through the deponent Beatrice Muriithi states that the interest of the parties ought to be balanced and that as it stands, the scale tilts in favor of the respondent.

18. Whereas the applicants did not avail a draft memorandum ofappeal, it is apparent from the above averments that the intended appeal essentially seeks to challenge the decision by the trial court to decline to set aside the interlocutory judgment to enable the applicants put in their statement of defence. Upon balancing the competing interests at play, I am satisfied that the applicants stand to suffer a graver injustice if denied the right to be heard and I therefore find that they have raised arguable grounds for consideration on appeal.

19. On the final condition touching on prejudice, the applicants didnot discuss prejudice in respect to the respondent while on the other hand, the respondent states that she stands to be prejudiced since she will incur further costs in attending court and in summoning her witness who may not be traceable or available.

20. In the absence of any credible evidence to support the assertionsof prejudice to be suffered by the respondent or to show that any prejudice cannot be adequately compensated by way of costs/damages, I am convinced that it would not be in the interest of justice to deny the applicants an opportunity to challenge the trial court’s decision on appeal. I therefore find it reasonable in the circumstances to extend the time required for the applicants to lodge their appeal despite the prolonged delay.

21. The second order sought is that of a stay of execution of thedecree pending appeal.

22. The guiding provision is Order 42, Rule 6(2) of the CivilProcedure Ruleswhich sets out the following conditions indetermining an application for stay.

23. The first condition stating that the application must have beenmade without unreasonable delay has already been addressed above.

24. The second condition touches on substantial loss to be sufferedby an applicant. In his supporting affidavit, the 2ndapplicant states the applicants’ apprehension that unless an order for a stay of execution is granted, it is likely that they will not be able to recover the decretal sum from the respondent once the same is paid to her and the appeal succeeds. In reply, the respondent states that the Motion is purely intended to delay her from realizing the fruits of her judgment.

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

“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…”

26. In the absence of anything to indicate or ascertain therespondent’s financial capacity and upon considering the interest of justice, I am satisfied that the applicants have reasonably shown the likelihood of substantial loss occurring should the order for a stay of execution be denied.

27. The final condition which is the provision of security for the dueperformance of such decree or order was not addressed by any of the parties. Be that as it may, it is a mandatory requirement for the granting of an order for a stay of execution.

28. Consequently, the Motion dated 10th December, 2021 is allowedgiving rise to issuance of the following orders:

i. The applicants are granted leave to file their appeal out of time within 14 days from the date of this order.

ii. There shall be an order for stay of execution of the interlocutory judgment entered on 5th May, 2015 and consequent decree on the condition that the applicants deposit the entire decretal sum in court within 30 days from today, failing which the order for stay shall automatically lapse.

iii.Costs of the application to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 18TH DAY OF MARCH, 2022.

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

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the 1st and 2nd Appellants/Applicants

……………………………. for the Respondent