[2022] KEHC 15908 (KLR)

Kenya Medical Research Institute v Superclean Shine Limited & another (Civil Appeal 287 of 2019) [2022] KEHC 15908 (KLR) (Civ) (2 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15908 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 287 of 2019

JK Sergon, J

December 2, 2022

Between

Kenya Medical Research Institute

Appellant

and

Superclean Shine Limited

1st Respondent

Clean Degree Limited

2nd Respondent

Ruling

1. The appellant/applicant herein took out the notice of motion dated June 29, 2022 and sought for the substantive order of leave to lodge a record of appeal out of time against the judgment delivered on April 29, 2019 in Milimani CMCC No 7887 of 2015; and a further order that the draft record of appeal annexed thereto be deemed as duly filed and served upon payment of the requisite charges.

2. The motion is supported by the grounds set out on its body and the facts stated in the affidavit of advocate George Kithi.

3. The 1st respondent resisted the motion by putting in the replying affidavit sworn by its advocate, Beth Njeru on November 10, 2022.

4. On its part, the 2nd respondent did not participate at the hearing of the motion or file any documents in response thereto.

5. At the interparties hearing of the motion, the parties’ advocates made brief oral arguments.

6. I have considered the grounds laid out on the body of the motion; the facts deponed to in the affidavits supporting and opposing the motion; and the brief oral arguments.

7. It is clear that the substantive order sought in the motion is that for leave to file a record of appeal out of time.

8. On its part, the applicant states that upon filing the memorandum of appeal, it filed the application dated June 13, 2019 and sought for an order for a stay of execution of the trial court decree pending appeal and which order was granted by the court.

9. The applicant states that thereafter, its advocates made all reasonable efforts to obtain the certified copies of the decree and relevant documents to enable the filing of the record of appeal, while unbeknown to them, the lower court file had already been transferred to the High Court.

10. It is stated on behalf of the applicant that its advocate later received a notice to file the record of appeal but that it is not until the end of May, 2022 that they received the certified typed proceedings.

11. It is further stated on behalf of the applicant that it is still interested in pursuing the appeal and that the delay in filing the record of appeal is not unreasonable and has been explained.

12. Mackenzie, advocate for the applicant, further submits that the delay in filing the record of appeal was also occasioned by the outbreak of Covid-19.

13. In reply, the 1st respondent states that the delay in the matter is not only inordinate but also inexcusable in the circumstances.

14. The 1st respondent, being the judgment creditor in the suit, states that it has been prevented from enjoying the fruits of its judgment since the existence of the present appeal, whereas the applicant continues to enjoy the order for a stay of execution and which order was granted unconditionally.

15. It is the averment by the 1st respondent that in the circumstances therefore, it stands to suffer great prejudice if the instant motion is allowed.

16. To echo the sentiments made by the 1st respondent, counsel Njeru argues that the applicant is not deserving of the exercise of this court’s discretion in its favour and that should this court be inclined to grant the order sought, then provision of security for the due performance of the decree should be made.

17. On the subject of length of delay, upon my perusal of the record, I observed that the memorandum of appeal in the present appeal was filed on May 29, 2019 and it is not in dispute that to date, the applicant has not filed the record of appeal.

18. The record also shows that the applicant sought for and was granted an order for a stay of execution of the decree issued pursuant to the judgment delivered by the trial court on April 29, 2019, vide the order made by the High Court on September 5, 2019.

19. It is therefore apparent that there has been a prolonged delay in the appeal.

20. Concerning the reason(s) for the delay set out hereinabove, upon my study of the record, I note that a notice to file the record of appeal issued on August 22, 2020 was served upon the applicant’s advocate by way of the email dated September 28, 2020. It remains unclear whether the email elicited a response from the said advocate.

21. Upon my further study of the record, I observed that a correspondence dated March 9, 2021 was addressed to the milimani commercial courts by the deputy registrar, civil appeals division of the High Court, requesting for the record, certified copies of the judgment, pleadings and other relevant documents, which supports the averment made by the applicant as to the challenges and delays faced in obtaining the requisite documents.

22. The record also shows that the applicant through its advocate wrote to the deputy registrar by way of the letter dated April 6, 2021 and requested for a mention date with the purpose of taking directions on the appeal.

23. From the foregoing circumstances, I find the explanation for the delay to be reasonable in the circumstances.

24. Under the final principle on prejudice, upon weighing the competing interests of the parties herein and upon taking into consideration the fact that the memorandum of appeal has already been filed and the applicant is ready and willing to file the record of appeal, the interest of justice therefore enjoins me to grant the applicant an opportunity to pursue the appeal, notwithstanding the prolonged delay.

25. On the question of provision of security for the due performance of the decree, upon my perusal of the record, it is apparent that the decree is partially monetary in nature.

26. It is also apparent that the order for a stay of execution was granted unconditionally and there is nothing to indicate that the said order has been challenged or a review of the same sought by the 1st respondent.

27. In the circumstances, I am hesitant to make an order for the provision of security in the instant motion.

28. However, in the interest of substantive justice, I am of the view that it would be proper for the prosecution of the appeal to be expedited.

29. Having taken the above circumstances into account, I will allow the notice of motion dated June 29, 2019 and make the following orders consequently:i.The appellant/applicant is granted leave of 10 days to file a record of appeal out of time.ii.Costs of the application to abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 2ND DAY OF DECEMBER 2022. ………….…………….JK SERGONJUDGEIn the presence of:……………………………. for the Appellant/Applicant……………………………. for the 1st Respondent……………………………. for the 2nd Respondent