[2025] KEHC 125 (KLR)

NCBA Bank Kenya PLC v Ngoci & 2 others (Miscellaneous Application E107 of 2024) [2025] KEHC 125 (KLR) (Commercial and Tax) (16 January 2025) (Ruling)

Neutral citation: [2025] KEHC 125 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Miscellaneous Application E107 of 2024

JWW Mong'are, J

January 16, 2025

Between

NCBA Bank Kenya PLC

Applicant

and

Samuel Njoroge Ngoci

1st Respondent

Stanbic Bank Kenya Limited

2nd Respondent

National Transport and Safety Authority

3rd Respondent

Ruling

1. Before this honourable court is an application filed under Certificate of Urgency brought under Sections 1A, 1B, 3A, 63(e), 79G and 95 of the Civil Procedure Act, Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, Article 159 (2)(d) of the Constitution of Kenya, seeking the following orders:-a.Spentb.Spentc.Thatthis Honourable Court be pleased to grant leave to the Applicant to file an Appeal out of Statutory time against the judgment and resulting decree of Hon. G. Omodho delivered on 30th November 2023 in MCCC No. E7846 of 2020, Samuel Njoroge Ngoci v NCBA Bank Kenya PLC & 2 others.d.Thatpending the filing and lodgment and determination of the intended appeal, this Honourable Court be pleased to issue an order of stay of the execution Judgment and the resultant decree issued on 30th November 2023 by Hon. G. Omodho in MCCC No. E7846 of 2020: Samuel Njoroge Ngoci v NCBA Bank Kenya PLC & 2 others.e.Thatthe costs of this Application be provided for.

2. The application is supported by the grounds set on its face and the supporting affidavit sworn on 5th February 2024 by Christine Wahome, the Senior Legal Counsel of the Applicant. In opposition to the Motion, the 2nd Respondent has filed a replying affidavit sworn on 24th April 2024 by Ronny Otieno, a team leader in the Debt Recovery Department of the 2nd Respondent.

3. The Applicant and the 1st and 2nd Respondents filed written submissions which I have carefully considered.

Analysis and Determination. 4. The Application before this court has been brought under order 42 rule 6 of the Civil Procedure Rules and it seeks a stay of execution of the lower court Judgment delivered in CMCC No. E7846 of 2020- Samuel Njoroge Ngoci v NCBA Bank and 2 others. In the said Judgment the lower court declared the 1st Respondent as the lawful owner of M/V KBS 800D, the subject matter of the suit and directed that the 3rd Respondent proceed to correct its register to reflect the same. This Judgment was delivered on 30th November 2023 while the present application was filed on 5th February 2024.

5. The Applicant argues that because the Christmas break the court registry was not open to allow it to extract the typed proceedings and certified copies of judgment to allow it to file an appeal against the said judgment.

6. In opposing the application, the Respondents argue that the application was brought with inordinate delay as it was filed 66 days post judgment upon the expiry of the 30 day stay and that the Applicant has not met the threshold as under the Civil Procedure Rules in that they have failed to demonstrate how they stand to suffer irreparable loss if the judgment and decree is executed and in addition they have failed to provide security for costs as required by law.

7. Order 42 rule 6 of the Civil procedure Rules provides as follows:-“Stay in case of appeal [Order 42, rule 6]1. No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.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; andb.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.3. Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.4. For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.5. An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.6. Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”

8. I have considered the arguments put forth by the Applicant and take judicial notice that the judgment sought to be appealed from is not a money judgment but one granting ownership of the subject motor vehicle to the 1st Respondent. I also note that the Applicants have not offered an explanation on what actions they took to fastrack the issuance of the typed proceedings from the court registry during the period when the trial court granted a stay of 30 days. I am therefore not satisfied that the Applicant has met the threshold for orders of stay of execution of the Judgment and decree of the trial court issued on 30th November 2023. That limb of the Application is therefore denied.

9. Turning to the 2nd limb of the Application, the Applicant has urged the court to extent the time for filing its appeal against the Judgment of the lower court. The Applicant argues that it took time to obtain the typed proceedings and certified copies of the judgment. The Applicant has also in the body of the Application outlined its intended grounds of appeal. Order 50 Rule 6 of the Civil Procedure Rules gives the court power to enlarge time upon an application by a party before it. the said rule provides as follows:-“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”

10. I have considered the arguments put forth by the Applicants in urging the court to grant it time to file its intended appeal out of time. I note that the Applicants urge the court to be guided by Article 159 of the Constitution which commands the court in dispensing justice to apply substantive justice and avoid procedural technicalities.

11. Having found that the prayer for stay of execution of the Judgment and decree by the Applicant unwarranted, I am however satisfied that no prejudice will be suffered by the Applicants if the prayer for enlargement of time for filing the intended appeal is allowed.

Disposition: 12. In conclusion I find the Application by the Applicants partly successful in that the prayer for stay of execution of the Judgment and Decree of November 30, 2023 was denied while the prayer for seeking to extend time within which the intended appeal has been allowed. In view of the above finding, each party is directed to meet its own costs of the Application. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY at NAIROBI this 16TH DAY OF JANUARY 2025J.W.W. MONG’AREJUDGEIn the presence of:-1. Mr. Rotich for the Applicant.2. Ms. Alubi holding for the 1st Respondent.3. Ms. Obure holding brief for Mr. Anyona for 2nd Respondent.4. Amos - Court Assistant