[2017] KEHC 2862 (KLR)

IN THE HIGH COURT OF KENYA AT MURANG’A

MISC CIVIL APPLICATION NO 37 OF 2016

JULIUS KIRINGO………………………………………………...APPLICANT

VERSUS

JACKSON KARANJA GITHAIGA…………………...……….RESPONDENT

R U L I N G

1. In this application (notice of motion dated 06/07/2016) the Applicant, Julius Kiringo, seeks two main orders –

(a) Leave to appeal out of time against the decree in Kandara CMCC No 79 of 2015 passed on 02/06/2016; and

(b) Stay of execution of that decree pending disposal of such appeal.

2. The application is brought under section 79G of the Civil Procedure Act, Cap 21 (leave to appeal) and under Order 42, Rule 6 of the Civil Procedure Rules, 2010 (stay of execution). It is premised upon the grounds –

(i) That it took some time to obtain instructions to lodge appeal.

(ii) That the delay in appealing is not inordinate.

(iii) That the Applicant stands to suffer “irreparable loss”.

(iv) That the Applicant has a good and arguable appeal with high chances of success.

(v) That the Application for stay of execution has been brought without unreasonable delay.

(vi) That the Applicant is ready, willing and able to deposit the full decretal sum in court as security ”…within a reasonable time as the court may direct…”.

(vii) That granting the application will not occasion any prejudice to the Respondent.

(vii) That it is in the interests of justice to grant the orders sought.

The application is supported by an affidavit annexed thereto sworn by one Joan Oburu, the Claims Manager of Directline Assurance Co. Ltd, the insurers of the motor vehicle involved in the accident that gave rise to the claim in which the decree issued. I have read the affidavit.

3. The Respondent has opposed the application by his replying affidavit filed on 21/06/2017. Grounds of opposition emerging therefrom include –

(i) That the Applicant’s advocates were in court when the judgment was delivered on 02/06/2016.

(ii) That the application is made after inordinate and inexcusable delay.

(iii) That the intended appeal has no chances of success.

(iv) That the application is otherwise without merit and ought to be refused

4. I have considered the submissions of the learned counsels appearing. No authorities were cited.

5. Regarding leave to appeal out of time, section 79(G) of the Act provides –

“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 the 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 in time.”

6. In this case there is no certificate of delay by the lower court (certifying any time having been requisite for the preparation and delivery to the Applicant of a copy of the decree sought to be appealed against). It is also not disclosed in the supporting affidavit when a copy of the decree was obtained, or even when instructions to appeal were sought or given.

7. The decree having been passed on 02/06/2016, the Applicant ought to have lodged his appeal on or before 03/07/2016. The present application was filed on 06/07/2016. The delay is thus only three (3) days. This delay is neither inordinate nor inexcusable. The right of appeal is an important step in the administration of justice, and though the Applicant herein may be hard-pressed to demonstrate “good and sufficient cause”, I will not deny him that right on account of a delay of only three days, particularly bearing in mind that it is actually his insurers (who may ultimately have to bear the burden of the decree) who wish to appeal in exercise of their derivative right.

8. I will in the event allow the prayer for leave to appeal out of time. The Applicant may file his memorandum of appeal within fourteen (14) days of delivery of this ruling.

9. As for stay of execution of decree, the relevant law is to be found in Order 42, Rule 6(2) of the Civil Procedure Rules which provides –

“(2) No order for stay of execution shall be made under subrule (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.”

10. In the present case I am satisfied that the application for stay of execution has been made without unreasonable delay. I also note the Applicant is “ready, able and willing to furnish such reasonable security as (the) court may deem fit”. However, I note that the order entered on 14/07/2016 for the Applicant to deposit in court the decretal sum (KShs 770,000/00 for the purposes of the order) within twenty-one (21) days of that order in exchange for interim stay pending disposal of application was never complied with. But I shall not hold that against the Applicant as that interim stay was vacated on 25/10/2016, and the Respondent has thus been at liberty to execute the decree.

11. The last issue to consider is substantial loss. It is the Applicant’s evidential burden to demonstrate that if stay is not granted he stands to suffer substantial loss. In money decrees this is normally done by placing before the court such material as would indicate, for instance, that the applicant may have difficulties recovering the decretal sum should he succeed in his appeal.

12. In the affidavit sworn in support of the application, there is not even an attempt to demonstrate that the Applicant stands to suffer substantial loss should the decretal sum be paid before his appeal is disposed of. He has failed in that score, and I refuse to grant stay of execution. It is so ordered.

13. To summarize, the Applicant is granted leave to appeal out of time. He must lodge his memorandum of appeal within fourteen (14) days of delivery of this ruling. This application for stay of execution is refused.

14. As for costs, the Respondent shall have half of the costs of this application. The other half shall be in the appeal. If no appeal is ultimately filed the Respondent shall also have those.

15. Those will be the orders of the court.

DATED AND SIGNED AT MURANG’A THIS 12TH DAY OF OCTOBER 2017

H P G WAWERU

JUDGE

DELIVERED AT MURANG’A THIS 13TH DAY OF OCTOBER 2017