[2022] KEHC 331 (KLR)

Njuguna & another v Juma (Civil Appeal 37 of 2022) [2022] KEHC 331 (KLR) (Civ) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 331 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil Appeal 37 of 2022

JK Sergon, J

May 6, 2022

Between

Robert Macharia Njuguna

1st Applicant

Joel Juma

2nd Applicant

and

Everline Juma

Respondent

(Milimani CMCC No. 662 of 2019)

Ruling

1. This ruling is in respect of the Notice of Motion dated 3rdFebruary, 2022 taken out by the 1st and 2nd appellants/ applicants and supported by the grounds set out on its body and the facts stated in the affidavit of the advocate Anerita Salinder.

2. The applicants sought for an order for leave to appeal out of time against the judgment and decree delivered on 3rd November, 2021 in Milimani CMCC No. 662 of 2019 and a further order for a stay of execution of the aforementioned judgment pending the hearing and determination of the appeal.

3. The applicants also sought for an order to the effect that they be allowed to provide a bank guarantee from a rebuttable and well trusted bank in Kenya as security for the decretal sum.

4. In opposing the said Motion, the respondent filed the replying affidavit of advocate Samuel Otieno Kuyoh sworn on 11th February 2022.

5. The instant Motion was canvassed through oral arguments whereby the parties’ respective advocates chose to rely on the averments of made in their respective affidavits. I have considered the grounds laid out on the body of the Motion, the facts deponed in the affidavits supporting and opposing the Motion.

6. The orders being sought in the Motion are two-fold: first is the order seeking for enlargement of time to appeal and for leave to appeal out of time against the impugned judgment and decree.

7. Section 79G of the Civil Procedure Act stipulates that an appeal against the decision of a subordinate court shall be lodged within 30 days from the date of the decree or the order being appealed against. The provision further stipulates that an appeal can be admitted out of time where sufficient cause has been shown.

8. Moreover, under the provisions of Section 95 of the Civil Procedure Act and Order 50, Rule 5 of the Civil Procedure Rules, the courts have power to enlarge the time required for the performance of any act under the Rules even where such time has expired.

9. In the case of Thuita Mwangi v Kenya Airways Ltd [2003] eKLR the Court of Appeal illustrated the conditions to be met in deciding whether to extend the period for filing an appeal out of time and which I shall address hereunder.

10. Under the first condition touching on length of delay, while it is apparent from the record that no copy of the impugned judgment was availed to this court, the parties are in agreement that the impugned judgment was delivered on 3rd November, 2021 which is close to two (2) months prior to the filing of the Motion. In my mind, while there has clearly been a delay in filing the Motion, I do not find the delay to be inordinate.

11. As relates to the condition on whether or not an arguable appeal exists, it is the applicants’ assertion on the one hand that their appeal has high chances of success. The respondent on the other hand contends that the appeal has no real prospect of success and is geared mainly to gain time.

12. Upon my perusal of the grounds of appeal raised in the draft memorandum of appeal annexed to the Motion, I note that the appeal is challenging the finding of the trial court on quantum and liability. I am therefore satisfied that the applicants have demonstrated arguable points of law and fact in their appeal.

13. In addressing the final condition on prejudice, the applicants assert that the respondent does not stand to be prejudiced if the application is allowed.

14. Upon my perusal of the record, it is apparent that the judgment was in favour of the respondent herein and against the applicants. It therefore follows that the respondent is lawfully entitled to enjoy the fruits of his judgment. Suffice it to say that it would not be in the interest of justice to lock out the applicants who is aggrieved by the judgment of the trial court. I therefore find it reasonable for the applicants to be given the opportunity of challenging the subordinate court’s assessment on damages on appeal.

15. The second prayer is for stay of execution of the decree pending appeal, for which the guiding provision is Order 42, Rule 6(2) of the Civil Procedure Rules which sets out the conditions to be satisfied for such an order to be granted.

16. The first condition being that the application must have been brought without unreasonable delay has already been addressed hereinabove.

17. The second condition touches on substantial loss to be suffered by an applicants.

18. The applicants on their part are apprehensive that if the decretal amount is paid to the respondent, the likelihood of recovering the amount from the respondent should the appeal succeed is slim as he has not disclosed or furnished this court with documentary evidence to prove his financial standing. The respondent is of the view that the applicants have not demonstrated by way of evidence the substantial loss they stand to suffer in the circumstances and has personally guaranteed to refund the money if the same is paid out to them should the appeal be successful.

19. The question on who has the burden of proof on the issue of refund of the decretal sum was discussed by the Court of Appeal in the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another[2006] eKLR when it held that:“Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge…”

20. In the absence of anything to ascertain the respondent’s financial capacity to refund the decretal sum, I am satisfied that the applicants have reasonably demonstrated that they stands to suffer substantial loss if the order for a stay of execution is not granted.

21. Under the final condition which is the provision of security for the due performance of the decree or order, the applicants state that they are ready and willing to provide security by way of a bank guarantee. In retort, the respondent proposes that whole or part of the decretal sum to be paid or provision of security as a condition for stay.

22. In making an order for the provision of security, this court must balance the interest of the parties. In the present instance, it is noteworthy that the respondent has not shown any pressing need that would require payment of part of the decretal amount to him at this stage.

23. In the end therefore, the Motion dated 3rd February, 2022 is found to be meritorious and hence it is allowed in terms of the following orders:i.The applicants are granted leave of 14 days to file an appeal out of time.ii.There shall be an order for stay of execution of the judgment and decree issued on 3rd November, 2021 pending the hearing and determination of the intended appeal on the condition that the applicants provide a bank guarantee for the decretal sum within 45 days from the date hereof and in default the order for stay shall lapse.iii.Costs of the Motion shall abide the outcome of the intended appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 6TH DAY OF MAY, 2022. ...............................J. K. SERGONJUDGEIn the presence of:.................................... for the 1st Appellant.................................... for the 2nd Appellant.................................... for the Respondent