[2023] KEHC 24861 (KLR)

Ndungu v Omanga (Miscellaneous Civil Application 48 of 2023) [2023] KEHC 24861 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24861 (KLR)

Republic of Kenya

In the High Court at Kisii

Miscellaneous Civil Application 48 of 2023

PN Gichohi, J

November 6, 2023

Between

David Mbucha Ndungu

Applicant

and

Thomas Omanga

Respondent

Ruling

1. By a Notice of Motion Application dated 21st February, 2023 and filed through the firm of Muma Nyagaka & Co. Advocates, the Applicant moved this Court under Order 42 Rule 6 Order 50 Rule 5 of the Civil Procedure Rules 2010, Section 3A of the Civil Procedure Act and Article 159 of the Constitution of Kenya 2010 seeking the following orders:-1. Spent2. Spent3. That this Court be pleased to extend and/or enlarge time within which an appeal against the judgment of Hon. G. Barasa RM delivered on 5th January 2023 in Ogembo PMCC No. 172 of 2020. 4.That this Court be pleased to grant an order of stay of execution of the judgment and/or decree of the trial court in Ogembo PMCC No. 172 of 2020 entered on 5th January, 2023 pending hearing and determination of the intended appeal.5. The costs of this application be provided for.

2. The grounds on the face of the Application are mainly that:a.The judgment in Ogembo PMCC No. 172 of 2020 was scheduled to be delivered on 31st January , 2023 as directed by the trial court but suo moto, the trial court delivered it on 5th January, 2023 without any notice to the parties on the change of dates or notice to the parties that the judgment had been delivered.b.It was on 31st January, 2023 that the Applicant enquired of the judgment and learnt that the judgment had been delivered as the court was on transfer.c.That by the time Counsel for the Applicant became aware of the delivery of the judgment and its contents in order to advise the Applicant, the statutory period for filing the appeal had since lapsed.d.The Appeal is meritorious with high chances of success.e.The Respondent’s financial means are not ascertainable and he may not be in a position to make good any loss/ damage suffered if the decree herein is enforced and the appeal ultimately succeeds and the decision of the trial court overturned.f.The Applicant is ready and willing to furnish security as this Court may order and that the Respondent will not be prejudiced in any way of the orders sought are granted.

3. In support is the Affidavit sworn by David Mbucha Ndungu on 31st February 2023 to which he has attached a copy Memorandum of Appeal where he raised five (5) grounds of appeal both special ad general damages . Rehashing grounds on the face of the Application, he depones that the delay in filing the Appeal is not inordinate but rather excusable in the circumstances. He urged the Court to deem the Memorandum of Appeal as duly filed upon payment of the requisite fees.

4. Through the firm of M.K. Angása & Co. Advocates, the Respondent filed his Replying Affidavit sworn by Thomas Omanga on 16th March 2023. He states that upon delivery of the judgment on 5th January 2023, the trail court granted 30 days stay of execution which say has since lapsed. That the Applicant’s insurance was awarded of the judgement and chose not to act of the same until the lapse of the stay of execution which delay has not been explained.

5. Further, he states that the Memorandum of Appeal should be dismissed with costs to the Respondent as it does not raise any triable issues of law or facts, lacks merit and is a waste of Court’s time. He depones that the Applicant has failed to demonstrate that he will suffer irreparable loss and, in any event, the Respondent is a person of means.

6. Further, he depones that since the Applicant has not indicated the mode and the nature of the security he undertakes to deposit, if this Court is inclined to grant the orders sought, the Applicant should be directed to pay the Respondent half of the decretal sum plus lower court’s costs and the other half be deposited in a joint interest earning account in the names of both advocates pending hearing and determination of the intended appeal. Otherwise, he prayed that the Application dated 21st February 2023 be dismissed with costs to the Respondent.

APPLICANT’S SUBMISSIONS 7. The Appellant’s submissions dated 26th April 2023 are a highlight of the Application and the Affidavit in support. On whether the Application has been brought without unreasonable delay, Counsel submitted that the lapse of statutory period within which to file the appeal lapsed on 24th February 2023 and the delay in filing the appeal was eleven (11) days and therefore the delay was not inordinate and was explained.

8. On whether the Respondent will suffer substantial loss, Counsel cited the case of National Industrial Credit Bank Ltd vs Aquinas Francis Wasike and another [2006] eKLR and submitted that the onus of proof of the Respondent’s financial position remains with the Respondent.

9. On security, Counsel submitted that the Applicant proposes to furnish Bank Guarantee.

RESPONDENT’S SUBMISSIONS 10. In their submissions dated 14th June 2023, Counsel for the Respondent emphasised the contents of the Replying Affidavit and the conditions the Applicant must satisfy in an application for stay of execution as set out under Order 42 Rule 6 of the Civil Procedure Rules.

11. Citing the case of Kenya Shell Ltd v Kabiru & another [1986[ KLR 410, Counsel submitted that the Applicant has failed to meet the threshold of granting stay of execution. On issue of substantial loss, Counsel submitted that no evidence was tendered in support and proof of “perceived” execution and therefore, the Applicant has failed to prove substantial loss.

12. Counsel submitted that on the contrary, it is the Respondent who suffered bodily injuries as a result of the accident and has suffered huge financial loss to which he is entitled to compensation. Lastly, he urged the Court to apply its discretion sparingly and dismiss the Application with costs to the Respondent.

DETERMINATION 13. This Court has considered the Application herein, the Response thereto and the submissions by both parties. Parties rightly capture the conditions to be met in an application for stay of execution pending appeal as provided for under Order 42 Rule 6 (2) of the Civil Procedure Rules that is :a.The Applicant must satisfy the Court that he will suffer substantial loss unless the order sought is granted;b.The Application has been brought without unreasonable delay;c.The Applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him .

14. Parties also appreciate that extension of time is within the discretion of this Court. In this matter, what appears to be the starting point is the issue of delay in filing appeal. Regarding extension of time, the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission and 7 others [2015] eKLR held that:-“...it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the Court to exercise its discretion in favour of the applicant.”

15. The Respondent has not disputed that the trial court first scheduled the judgment to be delivered on 31st January, 2023. There is also no dispute that the said date was not only varied but brought forward to 5th January, 2023, the reason for the variance notwithstanding. From the material before Court, there is no evidence that the parties were notified of the change of dates and more so, the Applicant herein.

16. The Applicant has explained that he only noted on 31st January 2023 that the judgment was delivered about 26 days earlier. If stay of execution was granted at the time of delivery of the judgment, then the say had lapsed as at 21st February 2023 when this application was filed. That is an extenuating circumstance that favours the Applicant in this application. The delay in any event is not inordinate.

17. Regarding substantial loss, this was a money decree and as properly stated by the Applicant, the financial status of the Applicant and the Respondent becomes an issue. The burden lies on the Applicant to show that the Respondent cannot refund the money if the appeal is successful and the decree is overturned. It is not expected that the Applicant would know the financial status of the Respondent. That is the reason why the Respondent should counter and show he is able to so refund. It is not enough for him to sate that he is a person of means without expounding further.

18. On the issue of security, the Applicant did not state in the Application, the nature of the security he was offering. It was only in submissions that he offered bank guarantee. The Respondent on the other hand proposes that release to him half the decretal sum and costs of the lower court. Neither party annexed a copy of the judgment and decree from the lower court. It is not sufficient for the Respondent to mention figures in the submissions. In the circumstances, neither of those proposals is tenable in the circumstances herein.

19. In conclusion, this Court allows the Application dated 21st February, 2023 in the following terms:-1. An order be and is hereby issued for stay of execution of judgment and decree in Ogembo PMCC No. 172 of 2020 pending hearing and determination of the intended Appeal.2. The Applicant to file and serve the Memorandum of Appeal within 21 days from the date of this Ruling.3. The Applicant to deposit in Court the entire decretal sum within a period of 21 days from the date of this Ruling.4. The costs of this Application to abide the outcome of the intended Appeal.

DATED,SIGNED AND DELIVERED THROUGH MICROSOFT TEAMS AT KISII THIS 6TH DAY OF NOVEMBER, 2023. PATRICIA GICHOHI..............................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRARIn the presence of:Ms Murgor for the ApplicantN/A for Respondent