[2022] KEHC 3182 (KLR)

Njeri v Machogu (Suing as the Legal Representatives of the Estate of Jane Kwamboka Machogu (Deceased) (Miscellaneous Application E018 of 2021) [2022] KEHC 3182 (KLR) (17 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3182 (KLR)

Republic of Kenya

In the High Court at Chuka

Miscellaneous Application E018 of 2021

LW Gitari, J

May 17, 2022

Between

Lucy Njeri

Appellant

and

Charles Machogu & Samwel Oende Machogu

Respondent

Suing as the Legal Representatives of the Estate of Jane Kwamboka Machogu (Deceased

Ruling

1. Before this court is the Notice of Motion application dated 13th October 2021 filed under a Certificate of Urgency and brought under the provisions of Sections 79G and 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules.

2. The Applicant seeks orders for the extension of time to file her appeal to this court as well as a stay of execution of the judgment rendered between the parties in the lower Court. The intended appeal is from a judgment delivered on 8th September 2021 in Chuka CMCC No. E018 of 2021.

3. The application is premised on the grounds on the face of it and it is supported by the affidavit of the Applicant sworn on an unknown date in 2021. She deposed that the delay was occasioned by the delay in obtaining a typed copy of the trial court’s judgment which was not availed by the court until early October 2021.

4. The application is unopposed.

5. The issues for determination by this court are:a.Whether the Applicant is entitled to an extension of time to appeal, andb.Whether the Applicant is entitled to an order for stay of execution of the judgment delivered on 8th September 2021 in Chuka CMCC No. E018 of 2021.

Analysis a. Extension of time to appeal 6. Section 79G of the Civil Procedure Act is the operative part in answering the question whether the prayer to enlarge time to file the appeal is merited. The section provides as follows:“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.”

7. There are several authorities which give the guidelines on what will be considered “good cause” for purposes of permitting a party who is aggrieved by a lower court’s judgment or ruling to file an appeal out of time. It is trite that the power to grant leave extending the period of filing an appeal out of the statutory period is discretionary and must be granted on a case-by-case basis. in exercising the discretion whether to extend time to file an appeal out of time, the court must consider several factors which have been developed by our case law. These factors were suggested by the Court of Appeal in Mwangi v Kenya Airways Ltd [2003] KLR. They include the following:a)The period of delay;b)The reason for the delay;c)The arguability of the appeal;d)The degree of prejudice which could be suffered by the Respondent if the extension is granted;e)The importance of compliance with time limits to the particular litigation or issue; andf)The effect if any on the administration of justice or public interest if any is involved.

8. The lower court gave the Applicant the right to appeal within 28 days from the date of the judgment (September 8, 2021). The period was to lapse and indeed lapsed on October 6, 2021. The Applicant has explained that the delay in filing the appeal was occasioned by the delay in securing a copy of the impugned judgment.

9. Attached to the present application is a letter from the office of the Applicant’s counsel dated September 13, 2021and addressed to the lower court. The letter request for a signed and certified copy of the trial court’s judgment. The said letter was received by the court on 13th October 2021, which is the same day when the Applicant approached this court with the present application. This was 7 days after time had run out. This can hardly be said to be inordinate under the circumstances. it is therefore my view that the delay in filing the appeal was not inordinate and the reason for the delay has been sufficiently explained.The court has unfettered discretion to grant leave to file appeal out of time. In Nicholas Kiptoo Arap Korir Salat v Independent Electoral Boundaries Commission and 7 Others(2014) eKLR, the Supreme Court held as follows:1)Extension of time not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court.2)A party who seeks for extension of time has the burden of proof has the basis of laying a basis to the satisfaction of the court.3)Where the court should exercise the discretion to extend time, is a consideration on case to case basis.4)Where there is reasonable reason for the delay. The delay should be explained to the satisfaction of the court;5)Whether there will be any prejudice suffered by the respondents if the extension is granted.6)Whether the Application has been brought without undue delay; and7)Whether in certain cases, like election petitions, public interest should be considered for extending time.”

10. As for whether the intended appeal is arguable, I am unable to determine the same as the proceedings of the lower court are not before this court.In Njagi Kanyuguti alias Karingi Kinyunguti & 4 Others v David Njeru Njogu (1977) eKLR the case cited by the applicant, it was held;“The court is also enjoined to consider all circumstances of the case, both before coming to a decision whether or not to vacate the Judgment.”The extension of time is an exercise of court’s discretion. The court as well submitted must examine the spectrum of facts and circumstances as a whole to come up with cogent reasons to exercise its discretion, I find that the applicant has in her affidavit deponed that liability against her was ordered at 100% and damages awarded were in the sum of Kshs,1,910,000/- plus cost and colossal.The applicant has demonstrated that the delay in filing the appeal was not through her own fault. It is in the interests of justice in the circumstances to give her an opportunity to ventilate the appeal.

11. With regards to the likelihood of the Respondents suffering prejudice if the order is granted, I note that the Respondents did not file any response to this application despite due service and despite having legal representation. I am therefore unable to see any adverse effect that the Respondent will suffer if the prayer is granted.

12. Order 50 Rule 6 of the Civil Procedure Rules provides:“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.

13. Thus, while the statutory timelines are crucial in ensuring due and efficient administration of justice, they are not, in themselves a core substantive value in the same sense.

14. Guided by legal provisions and authorities provided above and looking at all the circumstances of this application in totality, prayers no. 2 and 3 in the present application are merited.

Stay of execution 15. The Application for stay of judgment is primarily governed by the terms of Order 42 Rule 6 of the Civil Procedure Rules. The conditions to be met by an Applicant in order to be entitled to an order for stay are encapsuled in that Rule in the following terms:“6. (1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of 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 sub-rule (1) unless—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; andSuch 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.”

16. The granting of an order of stay of execution pending appeal by the High Court is governed by Order 42 Rule 6 of the Civil Procedure Rules. For an Applicant to be successful in an application for stay, they have to demonstrate that:a.The appeal they have filed is arguable;b.They are likely to suffer substantial loss unless the order is made. Differently put, they must demonstrate that the appeal will be rendered nugatory if the stay is not granted;c.The application was made without unreasonable delay; and;d.They have given or are willing to give such security as the court may order for the due performance of the decree which may ultimately be binding on them.

17. The order of stay is grantable at the discretion of the court on sufficient cause being established by the applicant. The incidence of the legal burden of proof on matters which the applicant must prove lies with the Applicant. Considering all relevant matters and the interests of the parties it is int he interest of justice to order stay of execution so that the appeal is not rendered nugatory.

18. As noted above, I am unable to say that the grounds of appeal in the Draft Memorandum of Appeal are arguable. However, the Applicant was not required to persuade this court that the intended appeal has a high probability of success to secure an order of stay of execution. All she needed to do was demonstrate that she has plausible and conceivably persuasive grounds of either facts or law to overturn the decision by the lower court. The Applicant has easily met that standard.

19. The next issue is whether the Applicant will suffer substantial loss if an order of stay is not granted. The applicant, in the impugned judgment was found to be 100% liable for the accident that occurred, and the Respondents were awarded damages in the sum of Kshs. 1,910,000/= plus costs and interest. This is indeed a substantial amount. The Applicant contends that the Respondents are citizens of humble means and as such, if her appeal succeeds, it will be an uphill task for her to recover from them any decretal sums she will have paid. The Applicant has therefore demonstrated that she will suffer substantial loss unless the order of stay is granted.

20. As noted herein above, the Application was brought before this court without inordinate delay. However, the Applicant has failed to demonstrate that she is willing to furnish security for the due performance of any decree which might ultimately be binding on her. This however may not bar the court from granting the orders as it is the court which is supposed to order the security which the applicant should provide. Considering the substantial loss that the Applicant is likely to suffer, this court will exercise the discretion vested in it by ordering payment of security by the Applicant.

Conclusion 21. The upshot of the foregoing, I order that:-1)The application is allowed.2)The applicant is granted leave to file the appeal out of time as prayed under prayer N0. 2. 3)The Memorandum of Appeal is deemed as properly filed.4)The applicant to provide security by depositing in court within 21 days a security of an equivalent value of the decretal sum i.e. Kshs.1,910,000. 00. 5)There be stay of execution pending the determination of the appeal.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 17TH DAY OF MAY 2022. L.W. GITARIJUDGE17/5/2022The ruling has been read out in open court.L.W. GITARIJUDGE17/5/2022