[2017] KEHC 4072 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 522 OF 2014

LYNETTE NDUTA NJENGA...................................................APPELLANT

- V E R S U S –

ESTHER WACHUKA KABUE............................................RESPONDENT

RULING

1. Lynette Nduta Njenga, the appellant herein, filed a compensatory suit before the Chief Magistrate’s Court, Milimani Commercial Court, Nairobi against Esther Wachuka Kabue, the respondent herein, for the injuries she sustained in a road traffic accident she was involved on 23rd November 2009. The suit was heard and determined in favour of the appellant by Hon. M. C. Chepseba, learned Senior Principal Magistrate. The respondent was awarded ksh.500,000/= all inclusive. Being aggrieved on the award of damages the appellant preferred an appeal. The appeal was heard and determined in favour of the appellant. The award on damages was adjusted upwards from ksh.500,000 to ksh.1,852,000/= less contribution of 20% leaving a total of ksh,1,481,600/=. The respondent was aggrieved, consequently she preferred an appeal in the Court of Appeal.

2. The respondent has now taken out the motion dated 4/4/17 the subject matter of this ruling in which it sought for the following orders.

1. THAT this application be certified urgent and be heard ex-parte and service of the application be dispensed with in the first instance.

2. THAT there be interim stay of execution of the decree in H.C.C.A No. 522 of 2014 pending the hearing and determination of this application in the first instance.

3. THAT there be stay of execution of the decree herein pending the hearing and determination of the intended appeal against the judgment and order of the Honourable judge.

4. THAT the honourable court be pleased to enlarge time within which the applicant may lodge appeal out of time and leave be granted for it to be lodged.

5. THAT the attached draft notice of appeal be deemed as duly filed upon payment of court fees.

6. THAT costs of this application be provided for.

3. The motion is supported by the affidavit of Jackline Ndirangu.

When served, the respondent filed a replying affidavit of John M. Chigiti to oppose the motion.

4. I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the application.

5. It is clear from this motion that the applicant is seeking for two orders. First is that for leave to file her appeal out of time and secondly, an order for stay of execution.

6. Let me first consider the application for leave to file an appeal out of time. The applicant/appellant avers that she has a good and sufficient cause for not filing the appeal in time and that she will be denied justice and her constitutional rights infringed if leave to appeal out of time is not granted. The applicant has pledged to make an undertaking on security and abide by any conditions which the court may impose pending the hearing and determination of the appeal. The applicant avers that the delay to file the appeal was because judgment was entered without notice to her and she became aware of it only on the 28th February 2017 when a letter was served on her demanding payment of kshs.1,481,600/= for damages and costs from the respondent. By this time, the time to lodge appeal had already lapsed. The applicant further argues that she attempted negotiations with the respondent’s advocates to try and reach at an amicable decision on whether the award on damages could be reduced which negotiations collapsed and this gave the applicant reason to proceed with appeal after receiving instructions. This caused a further delay.

7. The respondent on the other hand is saying that the applicant’s application is frivolous, vexatious and an abuse of court process. It is argued that the application is an afterthought and is actuated with malice as it is calculated to stall the process of execution thus further delaying the respondent’s realization of her fruits of judgment. The respondent has also argued that the delay by the applicant to file the appeal was due to factors within the applicant’s knowledge and control and it attributed it to the applicant’s insurer’s bureaucratic procedures and its advocate’s failure to exercise due diligence and therefore the delay inexcusable.

8. The principles that guide a court in considering an application for leave to file an appeal out of time were restated by the Court of Appeal in the case of Stanley Kahoro Mwangi & 2 others =vs= Kanyamwi Trading Company Limited 2015 eKLRthus:

“The principles guiding the court on an application for extension of time are well settled and there are several authorities on it.

The principles are to the effect that the powers of the court in deciding such an application are discretionary and unfettered. It is therefore upon an applicant to explain to the court that he is entitled to the discretion being exercised in his favour.” Whereas in the case of M/s PortReitz Maternity =vs= James Karanga Kabia, Civil Appeal No. 63 of 1997, it was held that:

“The right of appeal must be balanced against an equally weighty right, that of the plaintiff to enjoy the fruits of judgment delivered in his favour. There must be a just cause of depriving the plaintiff that right.”

9. The applicant therefore has to place sufficient material before the court which would explain why there was delay in filing the appeal. The court has to balance the competing interests of the applicant with those of the respondent. There is no limit to the number of factors the court would consider, so long as they are relevant. However, the main principles that guide the court in such an application are: first, the period of delay, secondly, the reason for the delay, and thirdly the degree of prejudice to the applicant if the application is granted. Having considered the material placed before this court and the rival arguments I am convinced that the applicant has given this court sufficient explanation for her delay in filing the appeal in time. The delay in my view is explained hence excusable.

10. Having determined the application for leave to appeal out of time let me now consider the prayer for stay. The principles to be considered in determining an application for stay are set out under Order 42 of the Civil Procedure Rules. First, an applicant must show the substantial loss it would suffer if the order for stay is denied. Secondly, the application for stay should be filed without unreasonable delay. Thirdly, that the court should consider the provision of security for the due performance of the decree.

11. Let me start with the second principle. This principle is that the period of delay in filing the application for stay should be reasonable. It is clear on the record that judgment was entered on 27/01/17 and the motion was filed on 4/4/2017. The delay having been explained, in my view is excusable.

12. The second principle to be considered is the substantial loss the applicant may suffer if the order for stay is denied. The applicant avers that the respondent may execute the decree against the appellant and if the decree herein is executed, then the intended appeal will be rendered nugatory. It is also argued that if the decretal sum is paid to the respondent she will not be in a position to refund if the appeal turns out to be successful. This assertion is not controverted by the respondent.

13. The third principle is the provision for security for the due performance of the decree. I think a fair order here is to direct the applicant to deposit the decretal sum of ksh.1,481,600/= as a condition.

14. In the end, the motion is allowed as follows:

1. The applicant is granted leave to file an appeal out of time.

2. The applicant is also granted an order for stay of execution of the decree pending the filing and determination of the intended appeal on condition that the applicant deposits the decretal sum of ksh.1,481,600/= in an interest earning account in the joint names of learned counsels and or firms of advocates within 30 days from the date hereof.

3. In default of (2) above, the respondent shall be at liberty to execute the decree without further reference to this court.

4. Costs of the motion to abide the outcome of the appeal.

Dated, Signed and Delivered in open court this 14th day of July, 2017.

J. K. SERGON

JUDGE

In the presence of:

...................................for the Appellant

........................................ for the Respondent