[2023] KEHC 25480 (KLR)

Kenpoly Manufacturers Ltd v Yegon (Miscellaneous Civil Application E032 of 2023) [2023] KEHC 25480 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25480 (KLR)

Republic of Kenya

In the High Court at Bomet

Miscellaneous Civil Application E032 of 2023

RL Korir, J

November 16, 2023

Between

Kenpoly Manufacturers Ltd

Applicant

and

Zacharia Kibet Yegon

Respondent

Ruling

1. The Applicant filed a Notice of Motion Application dated 15th June 2023 which sought the following Orders:-i.Spent.ii.Spent.iii.That the Honourable Court be pleased to extend and/or enlarge time within which to lodge and Appeal from the Judgment/Decree of the trial court in Bomet PMCC NO. E046 of 2022. iv.That costs of this application be provided for.

2. The Application was brought under the provisions of order 42 rule 6, order 22 rules 21 & 25, order 51 rule 1 of the Civil Procedure Rules and it was based on the grounds on the face of the Application and further by the Supporting Affidavit sworn by Emma Mwangi on 15th June 2023.

The Applicant’s Case. 3. The Applicant who was the Legal Officer of the Applicant’s Insurer stated that the subordinate court delivered a Judgment on 8th May 2023 and by statute they were obligated to satisfy the Judgment. That the Judgment had been delivered away from the station and as of 15th May 2023, the same had not been returned to the registry for their advocates to procure a certified copy for the purposes of preferring an Appeal.

4. It was the Applicant’s case that by the time they procured the certified copy, the time for filing the Appeal had lapsed. That the failure to file the Appeal within time was not their fault.

5. The Applicant stated that they had a strong Appeal on the damages awarded by the trial court and the Appeal had a high chance of success.

6. It was the Applicant’s case that the Respondent would not suffer any prejudice which could not be compensated by way of costs.

The Response 7. The Respondent responded to the Application through the Replying Affidavit dated 12th July 2023. He stated that whereas the Applicant had the right to appeal, it did not mean that he should be denied the fruits of his judgment. That the Application was full of falsehoods and it was malicious as the Applicant wanted to deny him justice which was rightly awarded to him.

8. It was the Respondent’s case that the Applicant had not shown any prejudice or substantial loss that it would suffer if the Application was declined. That the Respondent would be greatly prejudiced because his justice would be delayed contrary to the provisions of article 159 (2) (b) of the Constitution.

9. On 25th July 2023, I directed that the Application be canvassed by way of written submissions.

Applicant’s written submissions. 10. Through its submissions dated 16th October 2023, the Applicant submitted that the delay was excusable as it was occasioned by circumstances that were not beyond their control. That on 8th may 2023, the court delivered its Judgment virtually and outside the station and they were unable to procure a copy of the Judgment in good time. It further submitted that this court had discretion is enlarging the time to file an Appeal. It relied on Moses Odero Owuor & 2 others v Andronico Otieno Anindo [2013] eKLR and Kamlesh Mansukhalal Damki Patni v Director of Public Prosecution & 3 others [2015] eKLR.

11. It was the Applicant’s submission that its Appeal was arguable and had a high chance of succeeding. That it’s Appeal raised triable issues. It relied on Vishva Stone Suppliers Company Limited v RSR Stone Limited[2020] eKLR andDivya J. Patel v Guardian Bank Limited [2020] eKLR.

12. The Applicant submitted that in the best interest of the parties herein that the court issues a stay of execution on condition that the Applicant deposits the decretal amount in a joint interest earning account within a stipulated period. It relied on Butt v Rent Restriction Tribunal[1982] KLR 417.

13. It was the Applicant’s submission that they had come to court in good time and that they had disclosed sufficient reason why this court should rule in their favour.

The Respondent’s submissions. 14. Through his submissions dated 8th August 2023, the Respondent submitted that this court had discretion in deciding to enlarge the time for filing an Appeal. He relied on Silas Kanyolu Mwatha v Josephine Kavive James [2021] eKLR. He further submitted that should the court extend the time to file the Appeal, it should do so on the condition that the Applicant pays him half the decretal amount.

15. Regarding the prayer for stay of execution, the Respondent equally submitted that if stay is to be granted, it is granted on the condition that the Applicant pays him half the decretal sum and the other half in a joint interest earning account in the joint names of the parties’ advocates. He relied on order 42 rule 6 of the Civil Procedure Rules, Magnate Ventures v Simon Mutua Muatha & another [2018] eKLR and Suleiman v Amboseli Resort Limited [2004] 2 KLR 589.

16. It was the Respondent’s submission that the Applicant had not demonstrated to the court that the orders he sought should be granted.

17. I have gone through and considered the Notice of Motion Application dated 15th June 2023, the Replying Affidavit dated 12th July 2023 the Applicant’s written submissions dated 16th October 2023 and the Respondent’s Written Submissions dated 8th August 2023. The only issue for my determination was whether the Applicant should be granted leave to file his appeal out of time.

18. Section 79G of the Civil Procedure Act provides that:-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.

19. This court is clothed with the discretion to decide whether or not to grant leave to file an appeal out of time. Such discretion ought to be exercised judiciously and within the principles of the law. The principles were set out in the Court of Appeal case ofOmar Shurie v Marian Rashe Yafar (Civil Application No. 107 of 2020) UR where it was held:-“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.” (Emphasis mine)

20. Similarly, the Court of Appeal in Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR held:-“………..Nevertheless, it ought to be guided by consideration of factors stated in many previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted, and whether the matter raises issues of public importance, amongst others – See Fakir Mohamed V Joseph Mugambi & 2 Others, Civil Application Nai. 332 of 2004 (unreported). There is also a duty now imposed on the Court under sections 3A and 3B of the Appellate Jurisdiction Act to ensure that the factors considered are consonant with the overriding objective of civil litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the Court.”

21. The importance of giving a sufficient reason for the extension of time to appeal was discussed in the Court of Appeal case ofSusan Ogutu Oloo & 2 Others v Doris Odindo Omolo[2019] eKLR where it was held that:-“In an application for extension of time, the single Judge has discretion. I am aware that the discretion I have is to be exercised judiciously and not whimsically or capriciously. The guiding principles on the issue of extension of time was laid out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC [2014] EKLR SUP. CT. Application No. 16 OF 2014. The Supreme Court aptly stated extension of time is not a right of a party; a party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court. Of paramount importance, the reason for delay must be explained to the satisfaction of the Court. Further, the application for extension must be brought without undue delay and it must be demonstrated if the respondent will not suffer prejudice if extension is granted”.

22. The Applicant stated that the reason he could not file his Appeal out of time was that they could not procure a certified copy of the Judgment in time. That the trial court delivered its Judgment virtually and out of station and by the time they procured the Judgment and decided to file an Appeal, the requisite time for filing it had lapsed. The Applicant stated that their failure to lodge an Appeal within the required time was caused by circumstances beyond their control.

23. The Respondent on the other hand stated that even though the Applicant had the right to appeal, he should not be denied the fruits of his Judgment.

24. The Applicant attached a copy of the trial court Judgment and the same was marked as EM1. It shows that the Judgment was delivered on 8th May 2023. The Applicant has also attached a copy of his draft Memorandum of Appeal marked as EM4 which shows that he filed his Appeal on 15th June 2023. This means that the Appeal was filed seven (7) days after the requisite 30 days.

25. It is my finding that a delay of 7 days was not inordinate. I am satisfied by the Appellant’s reason for not filing his Appeal within time.

26. On the issue of the Appeal being arguable, I have perused the draft Memorandum of Appeal dated 13th June 2023 and I find that it was arguable as it raised issues that required the court’s determination. In the case of Kenya Industrial Estate Limited & Another v Matilda Tenge Mwachia [2021] eKLR, the Court of Appeal held that:-“As stated earlier, an arguable appeal is one that is not frivolous but raises a bona fide issue deserving determination by a Court and a single bona fide issue would suffice”.

27. The final ground that the court considers in such an application is the prejudice that the Respondent would suffer if leave to file the Appeal out of time was granted. In the case of Ngwambu Ivita v Akton Mutua Kyumbu [1984] KLR 441, the Court of Appeal held:-“The Defendant must however satisfy the court that he will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the Plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution.”

28. The Respondent stated that he would be prejudiced if the Applicant was allowed to file his appeal out of time. His prejudice would be that his justice would have been delayed. This in my view is not a sufficient reason to deny the Applicant an opportunity to ventilate his case on Appeal. It is my finding that the Respondent has not shown the prejudice he would suffer if the leave to file the Appeal out of time was granted.

29. This court’s position is that a party has a right to appeal and it would take extra ordinary circumstances to deny a party such a right.

30. In the final analysis, the Applicant has satisfied the conditions precedent to the court enlarging his time to file his appeal.

31. I have however noted that both parties have submitted on the prayer for stay of execution. The said prayer was not available for this court’s determination. Prayer 2 in the Applicant’s Application dated 15th June 2023 was for stay of execution of the Judgment/Decree in Bomet PMCC No. E046 of 2022 pending the hearing and determination of the Application. On 21st June 2023, this court granted the stay on a temporary basis and the same was extended on 25th July 2023 when the matter was mentioned in open court. The Applicant did not seek for stay of execution pending the hearing and determination of his intended Appeal.

32. The Applicant had submitted that it was willing to deposit the decretal sum as a condition for being granted a stay of execution. In the interest of justice and in an effort to save judicial time, I find it prudent to grant the stay of execution pending the hearing and determination of the Appeal on condition that the Applicant deposits the full decretal amount as security.

33. In the end, the Notice of Motion Application dated 15th June 2023 is merited. I hereby make the following orders:-i.The Applicant is granted leave to lodge his appeal from the Judgment/Decree in Bomet PMCC No. E046 of 2022 out of time.ii.The draft Memorandum of Appeal dated 13th June 2023 and filed on 15th June 2023 be and is hereby deemed properly on record.iii.The Applicant be and is hereby granted stay of execution of the Judgment/Decree in Bomet PMCC NO. E046 of 2022 after depositing Kshs 3,106,970/= in an interest earning account in the joint names of the parties’ advocates within 45 days of this Ruling.iv.Failure to deposit the decretal sum of Kshs 3,106,970/= within 45 days of this Ruling shall invalidate the stay of execution.v.The applicant though successful is not granted costs of the application.

34. Orders accordingly.

RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 16TH DAY OF NOVEMBER, 2023. ..........................R. LAGAT-KORIRJUDGERuling delivered in the absence of the parties. Siele(Court Assistant)