[2022] KEHC 10092 (KLR)

Nyaga & 2 others v Mathaara & 2 others (Suing as the Administrators of the Estate of Brian Mumo alias Brian Mumo Munyao - Deceased) (Civil Appeal E39 of 2020) [2022] KEHC 10092 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10092 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E39 of 2020

GV Odunga, J

July 14, 2022

Between

Julius Chomba Chomba Nyaga

1st Appellant

Joymax Holdings Limited.

2nd Appellant

David Ngumi Mwangi

3rd Appellant

and

Mary Nyambura Mathaara

1st Respondent

Catherine Wanjiku Muiruri

2nd Respondent

Emmah Mwahaki Gitutu Mathara

3rd Respondent

Suing as the Administrators of the Estate of Brian Mumo alias Brian Mumo Munyao - Deceased

Ruling

1. On February 28, 2022, this Court issued an order granting a stay of execution pending the appeal on a stay of execution pending the said appeal on condition that the Applicants remit to the Respondents half of the decretal sum and issues a bank guarantee from a reputable bank to secure the balance of the decretal sum during the period of the appeal within 30 days from the date thereof and in default the application for stay to stand dismissed.

2. It is clear that the said conditional order was not complied with.

3. In the instant application dated April 25, 2022, the Applicant seeks the following orders:1. That this Application be certified urgent, service be dispensed with thereof and the same be heard ex parte in the first instance.2. That this Honourable Court be pleased to grant a stay of execution of the Judgment and/or Decree issued in 314 of 2019- Machakos on December 3, 2020pending the hearing and determination of this Application.3. That this Honourable Court do review/vary the conditions for stay of execution granted by the Honourable Judge on February 28, 2022. 4.That this Honourable court be pleased to enlarge time within which the Appellants should comply with the court orders issued on February 28, 2022 and/or vary the said Ruling.5. That this Honourable Court allow the Appellant/Applicant to furnish the Court with security in the form of a Bank Guarantee from the DTB Bank/ and or Family Bank Limited of Kshs 3,000,000/- which is the statutory limit for insurance companies.6. That the Application be heard inter partes on such date and time as this Honourable Court may direct.7. That the costs of this Application abide the outcome of the Appeal.

4. The application was supported by an affidavit sworn by Njoroge Caroline, an advocate of the High Court of Kenya practicing as such in the firm of M/s Kimondo Gachoka Advocates herein on record for the Appellants/Applicants herein.

5. According to the deponent, upon being informed of the orders of the court in regard to the stay conditions, the insured’s insurer responded that they could only manage to furnish the Court with security in the form of a Bank Guarantee from the DTB Bank/ and or Family Bank Limited of up to the statutory limit of Kshs 3,000,000/-. However, the time granted by the Court to furnish a Bank guarantee for the decretal sum specific to this matter within the next 30 days from the date of ruling has since lapsed hence it is necessary that the court be pleased to enlarge the time within which the Appellants should comply with the court orders issued on February 28, 2022 and/or vary the said Ruling.

6. It was averred that the Appellant/Applicants insurer is ready and willing to secure the said Kshs. 3,000,000/- of the decretal amount by way of bank guarantee from a reputable bank (DTB/Family Bank) within the Republic of Kenya within 21 days since the Appellant/Applicant is still interested in pursuing the Appeal filed herein. It was deposed that the Appellant/Applicant will be highly prejudiced if the application is not allowed as the Respondent will be at liberty to execute and the Appeal will be rendered nugatory. However, the Respondent will not be prejudiced in any way if the conditions of depositing the security are varied.

7. In opposing the application, the Respondent relied on the affidavit sworn by Catherine Wanjiku Muiruri, one of the Respondents herein on May 9, 2022. According to her, there is no discovery of new and important matter of evidence, which after exercise of due diligence, was not within the knowledge of the Applicant or could not be produced by him at the time when the decree was passed or order made. It was further deposed that the Applicant has neither demonstrated before this court discovery of new evidence nor has it demonstrated that the information sworn in the supporting affidavit was not within their knowledge before the judgment was made.

8. It was further averred that an Application of this nature ought to be brought without unreasonable delay, however, this Application has been filed 2 months after the ruling had been delivered and yet they were to comply within 30 days from the date of the ruling failure to which the application for stay would stand dismissed. It was therefore averred that the Applicant has not revealed any ground for review in the Application or at all and its aim in any event is to embarrass this Court’s process. It was averred that the applicants are seeking to have their cake and eat it in that the court already gave conditions for stay which the defendant has failed to comply with and they now seek to have stay orders on their own terms.

9. Based on legal advice, the deponent averred that this Application has not been brought under any specific grounds/limbs set out in the law and no reasonable or sufficient reasons have been cited and therefore it outrightly contravenes the express provisions of the law. In her view, the said Application is an afterthought aimed at denying her the fruits of her Judgment delivered on December 3, 2020 to a tune of Kshs. 3,904,542/= plus costs hence it is only fair and just that it be dismissed with costs.

Determination 10. I have considered the application, the affidavits, both in support of and in opposition thereto and the submissions filed. The instant application is expressed to be brought under Order 51 Rule 1 and 3 of the Civil Procedure Rules, Sections 1A, 1B, 3A, 75G and 95 of the Civil Procedure Act and all other enabling provisions of the law. Suffice it to state that none of the said provisions expressly deal with review or extension of time to comply with the orders of the Court.

11. However, Order 50 rule 6 of the Civil Procedure Rulesprovides that: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.

12. In this case the time for complying with the conditions was fixed by this court’s order. Accordingly, this court has the discretion to grant the orders sought herein. However, the decision whether or not to do so is in the court’s discretion. This being an exercise of judicial discretion, like any other judicial discretion must on fixed principles and not on private opinions, sentiments and sympathy or benevolence but deservedly and not arbitrarily, whimsically or capriciously. The Court’s discretion being judicial must therefore be exercised on the basis of evidence and sound legal principles, with the burden of disclosing the material falling squarely on the supplicant for such orders. One of those judicial principles expressly provided for in the above provision is that the applicant must satisfy the Court that he has a good cause for doing so, since as was held in Feroz Begum Qureshi and Another vs. Maganbhai Patel and Others [1964] EA 633, there is no difference between the words “sufficient cause” and “good cause”. It was therefore held in Daphne Parry vs. Murray Alexander Carson [1963] EA 546 that though the provision for extension of time requiring “sufficient reason” should receive a liberal construction, so as to advance substantial justice, when no negligence, nor inaction, nor want of bona fides, is imputed to the appellant, its interpretation must be in accordance with judicial principles.

13. In this case, the ruling which set out the conditions was delivered on February 28, 2022. The applicant had 30 days from the said date to comply therewith which would have been by the end of March, 2022. This application was not made until April 26, 2022, nearly another month after the last day. No attempt has been made at all to explain this delay by the Applicant.

14. In this case the reason advanced for the revision of the conditions for stay is that the statutory limit is Kshs 3,000,000. 00. That is an issue that the Applicant knew when the application for stay was granted. Accordingly, it is neither a new matter nor does it amount to an error apparent on the face of the record. In my view, it does not constitute a reasonable ground.

15. The Applicant contends that the insurance ought not to be directed to do that which the law does not allow it to do. No one has compelled it to do so. At this stage there is no order directing the Insurance Company to pay any sum. If its statutory limit is only Kshs 3,000,000. 00 nothing bars it from depositing the amount directed and paying the balance to the decree holder. Once it does that and assuming that its position as regards the limit of statutory liability is correct, it would have met its part of the bargain. However, it cannot seek to shield the judgement debtor from being executed against simply because, its statutory liability is limited. The insurance company ought to know that the primary liability falls on the insured and whether or not the insurer has a statutory limit does not absolve the insured from meeting its liability to the decree holder. The issue of limitation of the insurer’s liability only affects the insured. The third party, where the limitation is found to exist, is at liberty to pursue the insured for the balance. Accordingly, while the insurer may obtain stay against the decree holder, where the insured intends to execute against it for a sum more that it is statutorily liable to pay, it cannot bar the decree holder from executing against the judgement debtor simply because the insurer’s liability is limited.

16. In the premises, I find no merit in this application which I hereby dismiss with costs.

17. It is so ordered.

READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 14TH DAY OF JULY, 2022G V ODUNGAJUDGEIn the absence of the parties.CA Susan