[2017] KEHC 2593 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

MISCELLENOUS APPLICATION NO. 46 OF 2017

KYALE MBUVI WAMBUA……….......DEFENDANT/APPLICANT

VERSUS

ELITE OFFSET LTD……………..…..PLAINTIFF/RESPONDENT

RULING OF THE COURT

1. Before this court is the applicant’s notice of motion application dated 6th April, 2017. The applicant essentially seeks the following orders:

a. That there be stay of execution of the decree pending the hearing and determination of the intended appeal against the judgment and order of the lower court.

b. That this court be pleased to enlarge time and grant the applicant leave to file appeal against the lower court judgment out of time.

2. The motion is based on the grounds on its body and the supporting affidavit of Agnes Wangari Gichohi who is an advocate in conduct of the matter on behalf of the applicant. The affidavit was sworn on the same date as the motion. In response to the motion, Evans M. Mochama the advocate in conduct of this matter on behalf of the respondent swore a replying affidavit on 18th April, 2017.

3. The motion was disposed of by way of written submissions. I have considered the application and the submissions therein. The substantive law on stay of execution is found in Order 42 rule 6 of the Civil Procedure Rules which specifies the circumstances under which this court may order stay of execution of a decree or order pending an appeal. Rule 6(2) lays down the conditions which an applicant must satisfy to get order for stay of execution pending appeal. It provides as follows:

“No order for stay of execution shall be made under sub rule (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.”

4. The applicant must therefore satisfy the court that he/she stands to suffer substantial loss if stay is not granted and that the application had been filed without unreasonable delay. The applicant must also show that he/she is willing to offer such security as may be ordered by the court.

5. Section 79G of the Civil Procedure Act, CAP 21, provides as follows with regard to the time for filing of appeals:

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. Judgment was delivered on 28th February, 2017. In view of the proviso of Section 79 G, the applicant ought to have filed this motion by 28th March, 2017. It is clear therefore that the applicant’s application herein is out of time. The next question that begs is whether the delay is unreasonable and whether even with the delay, justice can still be done. It was argued in the submissions that the delay was not inordinate since that applicant was only 10 days late in bringing this motion. That thereby no prejudice has been occasioned to the respondent by the delay. 10 days delay in this circumstance cannot prejudice the respondent in a way that cannot be compensated by costs. Therefore, I find that the delay in filing this motion is not unreasonable.

7. On substantial loss, the applicant stated that he is apprehensive that the respondent may execute the decree against the applicant. That if execution takes place, the appeal, which raises arguable issues with high chances of success shall be rendered nugatory and the applicant will suffer injustice and be highly prejudiced since the company will have to pay the decretal sum to the respondent. It was the applicant’s argument that the respondent has not indicated the prejudice he shall suffer if this application is allowed. In contention, the respondent stated the applicant should not be allowed to continue frustrating the respondent from enjoying the fruits of his judgment. It was further argued that the appeal has no slightest chance of success. Among the grounds raised on the intended memorandum of appeal, are; that the learned magistrate erred in law in making such a high award as to show that the magistrate acted on a wrong principle of the law and that the learned magistrate’s award was made without considering the medical evidence before the court and failed to appreciate the nature of injuries sustained by the plaintiff and failed to be guided by authorities on comparable awards and hence ended up making an excessive award in view of the medical evidence presented before court. It is trite that a successful appeal does not mean one which must succeed rather one which is arguable. Looking at the two grounds I have rehearsed above, it is clear that they raise triable issues whether or not the trial magistrate’s award was excessive and whether or not in awarding, he relied on the principles of law. Having so said, dismissing this application which will allow execution to take place will definitely render the appeal nugatory such that the appeal shall merely be an academic exercise. I find that the applicant has satisfied this court that he shall suffer substantial loss in the event the orders sought are denied.

8. On the issue of security, the applicant’s indication was that it is ready and willing to pay security of costs. The end result is that the applicant has satisfied all the three conditions for granting stay of execution.

9. The second limb of this application is the prayer for extension of time. The power to extend time is discretionary and cannot be exercised on whim rather it is to be granted on sound reasons. The onus to give the reasons is on the applicant. The court in Fakir Mohamed v. Joseph Mugambi & 2 others Civil Appl. No. 332/04 (ur)stated as follows:

“The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path since the stricture of “sufficient reason” was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance- are all relevant but not exhaustive factors: See Mutiso vs Mwangi Civil Appl. NAI. 255 of 1997 (ur), Mwangi vs. Kenya Airways Ltd [2003] KLR 486, Major Joseph Mwereri Igweta vs. Murika M’Ethare &Attorney GeneralCivil application. NAI. 8/2000 (ur) and Murai v. Wainaina (No. 4) [1982] KLR 38. ”

10. The explanation given by the applicant for the delay is that after the delivery of the judgment, the applicant’s advocate communicated to the applicant’s insurer advising it to pay the decretal sum since the stay period had expired. That unknown to the applicant’s advocates, the insurer had instructed the advocate via an email of 8th March, 2017 that the judgment be appealed against. That the contents of the email was brought to the applicant’s advocate late in the day and the delay was thereby not deliberate. It was argued in the submissions that the delay was not inordinate since that applicant was only 10 days late in bringing this motion.

11. On the other hand, the respondent contended that the applicant’s advocate was instructed but failed to act. That the respondent should not be prejudiced by the omission. From the record it is revealed that the applicant’s advocate sought payment by a letter dated 1st March, 2017 and a reminder thereto on 6th April, 2017. The email giving instructions to the advocate to lodge an appeal was written on 8th March, 2017. An inference can therefore be made that the intention to appeal is not an afterthought. I find the explanation reasonable. The motion is therefore merited. The Applicant’s application dated 6/04/2017 is hereby allowed in the following terms:-

a. The Applicant is granted leave to lodge appeal within thirty (30)days from the date hereof.

b. The Applicant is ordered to deposit the entire decretal sumsinto a joint interest earning account in the names of Advocates for the parties or in the alternative issue a reputable bank guarantee or performance bond from a reputable Insurance Company within the next thirty (30) days from the date hereof failing which execution shall ensue.

c. The costs hereof do abide in the appeal.

It is so ordered.

Dated, Signed and Delivered at Machakos this 2nd day of November, 2017.

D.K. KEMEI

JUDGE

In the presence of:

No appearance for Muchemi for the Applicant

No appearance for Mochama for the Respondent

Kituva - court Assistant