[2022] KEHC 449 (KLR)

Nile Haulers Limited v Jared & another (Suing as the legal representatives of the Estate of the Late Jared Kenyatta Mogendi (Deceased)) (Miscellaneous Civil Case E002 of 2021) [2022] KEHC 449 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 449 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Miscellaneous Civil Case E002 of 2021

F Gikonyo, J

May 5, 2022

Between

Nile Haulers Limited

Applicant

and

Eunice Kenyatta Jared

1st Respondent

John Magara Momanyi

2nd Respondent

Suing as the legal representatives of the Estate of the Late Jared Kenyatta Mogendi (Deceased)

(This was an application for leave to file an appeal out of time from, and stay of execution of the judgment and decree of Hon W.K. Kitur SRM in Kilgoris PMCCC No 43 of 2017 delivered on 14th September 2021)

Ruling

Leave to appeal out of time and stay of execution [1]Before me is a Notice of Motion dated 2nd December, 2021 seeking the following orders:i.Spentii.That this honourable court be pleased to order stay of execution of the judgment and decree in Kilgoris PMCC No. 43 of 2017; Eunice Kenyatta Jared & John Magara Momanyi (Suing as The Legal Representatives of The Estate of Jared Kenyatta Mogendi (Deceased) v Nile Haulers Limited pending the hearing and determination of this application.iii.That this hounourable court be pleased to grant the applicant leave to file his appeal from the judgement and decree of the subordinate court in Kilgoris PMCC No. 43 of 2017; Eunice Kenyatta Jared & John Magara Momanyi (Suing as The Legal Representative of The Estate of Jared Kenyatta Mogendi (Deceased) v Nile Haulers Limited out of time.iv.That the memorandum of appeal annexed hereto be deemed as duly filed on payment of the filing fees.v.That this honourable court be pleased to order stay of the judgment and decree in Kilgoris PMCC No. 43 of 2017; Eunice Kenyatta Jared & John Magara Momanyi (Suing as The Legal Representative of The Estate of Jared Kenyatta Mogendi (Deceased) v Nile Haulers Limited pending the hearing and determination of the appeal.vi.That the costs of this application be in the cause.

[2]The application is premised on the grounds that judgment in the matter sought to be appealed from was delivered on 14th September 2021 in favour of the Respondents against the applicant.

[3]According to the applicant, the appeal has high chances of success; and are apprehensive that they will suffer substantial loss and their appeal will be rendered nugatory unless an order of stay of execution of judgment and decree of the lower court is granted pending appeal; that the applicant is willing to tender such security as this court may order for the performance of the decree they may ultimately be binding upon the applicant and their application has been brought without undue delay. That no prejudice will be suffered by the respondent if this application is allowed.

[4]The application is further based on the supporting affidavit sworn by Anne Wayamba wherein the legal officer reiterated the grounds in support of the application, and annexed a copy of draft intended memorandum of appeal.

[5]In the said affidavit, legal officer further deposes that immediately communicated to the applicant’s insurers but the legal manager; Mr. Anthony Kariuki left employment on September 17, 2021 thereby occasioning a gap in the organization and a lacuna in legal decision-making including deliberations on whether or not to pursue an appeal and by the time a replacement to Mr. Anthony Kariuki was made, more than two months had lapsed since the delivery of the judgment. By the time the applicant’s advocates received instructions from the applicant’s insurer to lodge an appeal, the time specified by Section 79G of the CPA, within which an appeal from the subordinate court should be filed in the high court had passed and stay of execution period ordered by the lower court had lapsed.

[6]The application is opposed by the Respondent vide Replying affidavit sworn on 6th December 2021 by Eunice Kenyatta Jared deposing that the application is incurably defective, incompetent and abuse of court process hence it should be dismissed with costs. The Respondent’s deponed over two months have lapsed between the delivery of the judgment sought to be appealed and the date of filing of the application, yet, no sufficient explanation for the delay has been provided, hence the applicant is guilty of laches.

[7]Further, that the applicant has not satisfied the conditions for grant of an order for stay. The appeal does not disclose any real triable issues, and the applicant has not demonstrated the nature of risks it is likely to suffer which amounts to substantial loss.

[8]The excuse raised by the applicant are purely internal management matters of the applicant’s insurer which were within the insurer’s full reach, knowledge, discretion and control and do not amount to reasonable delay. This court as is practice should direct the applicant to pay half of the decretal sum and full party and party costs and deposit the remaining half in an interest earning account opened in the joint names of the advocates on record for the parties herein.

[9]The respondents are willing and able to refund the decretal sum in the unlikely event that the applicant’s intended appeal succeeds. They therefore urged this court to dismiss this application with costs.

[10]The application was canvassed by way of written submissions.

The Applicant’s Submissions [11]The applicant submitted that its application should be assessed within the parameters set out in the case of Eshban Crispus Nduriri Githiaka v Flaurine Nyambura NduririCivil Application No. 294 of 2003 in order to determine whether it is meritorious or not. They relied on section 79G and 95 of the CPA.

[12]Th applicant submitted that the transition from one employee to another caused a failure in communication that went to the core of the applicant’s insurance company that led to the delay in lodging the appeal within the timelines. The applicant hence urged the court to consider the reason for the delay presented to be plausible.

[13]The applicant submitted that it has an arguable appeal and urged the court to look at the draft memorandum of appeal. The applicant relied on the case of Kulwant Singh Roopra v James Nzili Maswili [2014] eKLR, Civil Application No. Nai. 35 of 2014; Governers Balllon Safaris Limited v Skyship Company Limited and The County of Asmara [2014] eKLR.

[14]The applicant submitted that the legal principles to be met for grant of stay of an execution pending appeal are set out in Order 42 Rule 6 (1) and (2) of the CPR, and the case of Elena D. Korir v Kenyatta University [2012] eKLR

[15]The applicant submitted that the respondents have not adduced any evidence that they are capable of refunding the decretal sum if the appeal succeeds. From the lower court records the respondent testified that she was a house wife and her husband was the breadwinner. Her current employment status is unknown therefore she may not be able to refund the decretal sum should the appeal succeed. The applicant relied in the case of Nairobi HCCA No. 406 of 2011; Quest Resources Limited v Japan Port Consultants Limited [2015] eKLR, Bungoma HC Misc. Application No. 42 of 2011; James Wangalwa & another v Agnes Naliaka Cheseto.

[16]The applicant submitted that they are willing and ready to tender such security as this honourable court may order for the performance of the decree.

[17]In conclusion, the applicant submitted that they have met the criteria for filing an appeal out of time as set out by Section 79G and 95 of the CPA. They have also met the criteria for grant of stay of execution pending appeal as set out in Order 42 Rule 6 (1) and (2) of the CPR. The applicant risks to suffer irreparable loss if the respondents proceed in execution because it will render the intended appeal nugatory. The applicants have demonstrated that they are ready and willing to provide security for the due performance of the decree as the court may deem fit. They urged the court to allow their application.

The Respondents’ Submissions. [18]The respondents submitted that the applicant merely stated that it will suffer substantial loss but the same was not demonstrated or specifically proved. The respondents have relied on the cases of Kinyunjuri Muguta v Wotuku Muguta [2018] eKLR, James Wngalwa & another v Agnes Naliaka Cheseto [2012] eKLR, Nairobi Civil Appeal No. 97 of 1986 Kenya Shell Ltd v Benjamin Karuga Kibiru & another [1986] eKLR, Joseph Gachie t/a Joska Metal Works v Simon Ndetti Muema [2012] eKLR, Nairobi Civil Suit Misc. App. No. 495 of 2012, andLucy Waithera Kimanga & 2 others v John Waiganjo Gichuri [2015] eKLR.

[19]The respondents submitted that the applicant has not undertaken any steps to furnish security for performance of the decree. The applicant’s financial statement cannot suffice on the claim. Alternatively, the respondents urged this court that the applicant be ordered to furnish security for the due performance of the decree as per Order 42 Rule 22 of the CPR.

[20]The respondents submitted that the applicant is guilty of laches and therefore does not qualify for the orders sought. The applicant was granted 30 days stay during delivery of judgment but they did not appeal within time blaming it of internal management issue. The application was filed two months after judgement raising the issue of delay on the part of the applicant. They relied on the case of Esri Star Limited v Abdalla Opyayo Juma [2020] eKLR

[21]The respondents submitted that if the application is allowed, this court should order the applicant to pay the respondents half of the decretal sum and full party to party costs and the remaining half to be deposited into an interest earning account opened in joint names of the parties’ advocates. The same to be held until the intended appeal is heard and determined.

[22]The respondents submitted that the applicant has not put forward a justifiable and sufficient cause to warrant grant of extension of time an appeal and hence the application ought to be dismissed. The power to extend time within which to prefer an appeal is discretionary and the courts have set requirements for allowing such an application. The respondents have relied in the cases of MFI Document Solutions Ltd v Paretto Printing Works Limited[2021] eKLR, County Executive of Kisumu v County Government of Kisumu & Others[2017] eKLR and Lucy Waithera Kimanga & 2 others v John Waiganjo Gichuri [2015] eKLR.

[23]In conclusion, the respondents submitted that it is trite law that a successful party is entitled to enjoy the fruits of its lawful judgement and the applicant has not met the threshold for grant of the orders sought in the instant application. Therefore, the applicant’s application dated 02. 12. 2021 should be dismissed with costs to the respondents. They relied on the case of Machira t/a Machira & Co. Advocates v East Africa Standard No.2) [2002] 2 KLR 63.

Analysis and Determination [24]I have considered the application and the rival submissions of the parties. The significant orders sought are: -i)Leave to appeal out of time; andii)Stay of execution of decree of the lower court pending the lodging, hearing and determination of the intended appeal.

[25]The issue for determination therefore is: -i)Whether the court should grant the applicant; leave to file appeal out of time; and or stay of execution.

Leave to appeal out of time [26]Ordinarily, leave to file appeal out of time is granted if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time (See proviso to Section 75G of the Civil Procedure Act).

[27]Essentially, the court has power to allow a litigant to file appeal out of time. The statutory provisions respecting an appeal from the judgment or decree of a subordinate court to the High Court is Section 75G of the Civil Procedure Act.

[28]An appeal should be filed within 30 days of delivery of judgment (Section 79G of the Civil Procedure Act). The judgment in the lower court was delivered on September 14, 2021 and that this application was filed on December 2, 2021; thus, there was a delay of 2 months. Is this delay inordinate and therefore, inexcusable?

[29]The applicant’s legal officer has given an explanation for the delay; that the insurance delayed in giving instructions to appeal to their advocates owing to departure from employment of legal manager; Mr. Anthony Kariuki on September 17, 2021 which occasioned a gap in the organization, thereby, affecting legal decision-making including whether or not to pursue an appeal, By the time a replacement was made, the statutory period to appeal had lapsed.

[30]Although the respondent termed the so called ‘’cause of delay’’ to be an internal matter within the knowledge and control of the insurer, and should never constitute sufficient cause in law, and also argued that the applicant’s insurer was not a party to the claim, my considered view is that the insurer bears statutory obligation to pay the judgment by the third party herein (Section 10, Insurance (Motor Vehicles Third Party Risks) Act). It is, therefore, not apt to dismiss the position of the insurer in the manner proposed by the respondent in these kind of proceedings concerning the Insurance (Motor Vehicles Third Party Risks) Act. I find the explanation to be reasonable.

[31]Is the delay excusable therefore?

[32]In the case of Almas Hauliers Ltd v Abdulnasir Abukar Hassan [2017] eKLR a delay of four months was found not to be inordinate.

[33]The delay herein was about 2 months. In light of the amount of delay herein, and the statutory liability of the insurer to satisfy a judgment obtained by the third party herein, I am satisfied the delay in filing the appeal was due to good reason; the delay is not inordinate, and therefore, excusable.

[34]Looking at the draft memorandum of appeal annexed, the intended appeal is not frivolous on the face of it.

[35]Accordingly, I grant the appellant leave to file appeal in 30 days.

Stay of execution pending appeal [36]Under Order 42 Rule 6(2) of the Civil Procedure Rules the court will order stay of execution where sufficient cause has been established. And in doing so, the court will consider, whether: -a)Substantial loss may result to the applicant unless the order is made;b)The application has been made without unreasonable delay; andc)Security should be provided for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.

Substantial loss [37]The applicant claims that execution may be levied, thus, rendering the appeal nugatory. This is a money decree, and it is important to provide proof of inability to make a refund in the event the appeal is successful- this is what constitutes substantial loss. The applicant has stated that the applicant is a house wife and did not have any gainful employment. They say this was the evidence in the lower court. According to them, she will not be able to refund the money should the appeal succeed. The respondent merely stated that the applicant has not proved she will not refund the money without any disclosed financial ability of the respondents or the estate of the deceased.

[38]The trial court’s record show that the respondents were suing as personal representatives of the estate of the deceased as well as in their own behalf as dependants. Therefore, in my view, the financial status should be that of the estate as well as the respondents. Nothing was produced in this application to show ability to refund the money by the personal representatives or the respondents as individual dependants.

[39]However, in such cases, it is a matter of balancing two equally eminent competing rights. On the one hand, there is the right of the judgment-holder to immediate realization of the fruit of judgment. On the other hand, the appellant’s right of appeal. In the circumstances of this case, the appropriate remedy is to grant stay of execution pending appeal upon security which secures the position of each party; which is, to deposit the entire decretal sum in an interest earning joint account in the name of legal counsel for the parties. This way, the money will be available with interest earned to whomever becomes entitled to the money or a portion thereof.

Conclusion and Orders. [40]Accordingly, I allow the application in the terms:i.The applicant is granted leave to file appeal out of time, in any event, within 30 days from the date of this ruling.ii.There be stay of execution of judgment /decree in Kilgoris Principal Magistrate’s Court Civil Suit No 43 of 2017 pending the hearing and determination of the intended appeal, on condition that the applicant shall deposit the entire decretal sum in the Decree and Certificate of Costs dated December 20, 2021, and January 13, 2022, respectively, in a joint interest earning account in the names of both legal counsel for the parties within 60 days of today.iii.Costs in the cause given the finding of the court.

[41]Orders accordingly.

DATED, SIGNED AND DELIVERED AT KILGORIS THROUGH TEAMS APPLICATION, THIS 5TH DAY OF MAY, 2022F. GIKONYO.JUDGEIn the Presence of:1. M/s Kirabo for Applicant2. Gichana for Respondents3. CA – Mr. Kasas