[2017] KEHC 1244 (KLR)
The court found that the defendant had provided a plausible and uncontroverted explanation for its failure to file a notice of appeal within the prescribed period, as it was unaware of the judgment date and only learned of the judgment after the time for appeal had lapsed. This justified the exercise of the court's...
Source-derived case information.
- Citation
- [2017] KEHC 1244 (KLR)
- Parties
- Plaintiff: Patrick Kanaka Munyao; Defendant: Cementers Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 123 of 2015
- Procedural Posture
- Civil Suit / Ruling on Application for Stay of Execution and Extension of Time to Appeal
- Outcome
- Application allowed with conditions.
- Judges
- JK Sergon
- Legal Topics
- Stay of Execution, Extension of Time, Security for Due Performance, Substantial Loss, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Kanaka Munyao
Plaintiff
Cementers Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Stay of Execution and Extension of Time to Appeal
Legal Issues
- 1 Whether the defendant should be granted extension of time to file a notice of appeal out of time.
- 2 Whether an order for stay of execution pending appeal should be granted.
- 3 What form of security is appropriate for the due performance of the decree.
Ratio Decidendi
The court found that the defendant had provided a plausible and uncontroverted explanation for its failure to file a notice of appeal within the prescribed period, as it was unaware of the judgment date and only learned of the judgment after the time for appeal had lapsed. This justified the exercise of the court's discretion to extend time for filing the notice of appeal. On the issue of stay of execution, the court held that the defendant had established it would suffer substantial loss if stay was denied, since the plaintiff did not dispute his inability to refund the decretal sum if the appeal succeeded. The court further determined that the defendant's offer to provide an insurance...
Court Disposition
Application allowed with conditions.
Orders
- The defendant is granted leave of 14 days to file and serve a notice of appeal.
- Stay of execution of the decree is granted pending the filing, hearing, and determination of the intended appeal, on condition that the defendant provides an insurance bond or bank guarantee covering the decretal sum from a reputable insurance company or bank within 21 days.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 123 OF 2015
PATRICK KANAKA MUNYAO....................................PLAINTIFF
-V E R S U S –
CEMENTERS LTD...................................................DEFENDANT
RULING
1) On 18th august 2017, this court awarded Patrick Kinaka Munyao the plaintiff herein, judgement in the sum of Ksh.21,987,000/= against Cementers Ltd, the defendant, for the injuries he sustained as a result of an accident while in the course of his employment with the defendant in its construction site at Yaya Centre along Lenana Road on 12. 1.2014. The defendant has now taken out the motion dated 17. 10. 2017 in which it sought for the following orders inter alia:
1. This application be certified urgent and be heard ex parte in the first instance.
2. The firm of Mucheru-Oyatta and Associates be allowed to come on record on behalf of the defendant in place of the firm of Njongoro & Co. Advocates.
3. There be a stay of execution of the judgment and decree of this honourable court delivered on 18th August 2017 pending the hearing and determination of this application.
4. The time for filing a notice of appeal from the judgment and decree of this honourable court delivered on 18th August 2017 be extended by a period of fourteen days from the making of such order; and
5. There be a stay of execution of the judgment and decree of this honourable court delivered on 18th August 2017 pending the hearing and determination of the intended appeal.
6. Any other order be made as this honourable court deems fair and just.
2) The aforesaid motion is supported by the affidavit of Dipak Halal and a supplementary affidavit the same deponent swore. When served with the motion, the plaintiff filed a replying affidavit he swore to oppose the motion.
3) When the motion came up for interpartes hearing, learned counsels appearing in this matter were invited to make oral submissions. I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the motion. I have also considered the rival oral submissions of learned counsels appearing in this suit. The defendant/applicant avers that it only came to know of the judgment after the period required to file a notice of appeal had lapsed. The record shows that the defendant and its advocate were actually absent at the time of delivery of judgment. The plaintiff did not controvert the assertion that the defendant was not aware of the judgement date but only came to know of its existence after the period allowed to file a notice had lapsed. I am convinced that defendant has given a plausible reason to enable this court extend time to file an appeal out of time.
4) The other prayer is that for an order of stay pending appeal. The defendant has beseeched this court to grant it an order for stay pending appeal. It is its submission that it will suffer substantial loss if the order for stay is denied. The defendant clearly stated that if the decretal sum is paid to the plaintiff, he will not be in a position to refund the money in the event the appeal is successful. The plaintiff did not dispute this allegation but he instead concentrated on the question as to what is the suitable security for the due performance of the decree should be provided. Let me start by stating that the plaintiff having failed to controvert the assertion that he has no capacity to refund the decretal sum when required, I am satisfied that the defendant has established that it would suffer substantial loss if the order for stay is denied.
5) The defendant has proposed to provide an insurance bond as security for the due performance of the decree. The plaintiff opposed this proposal alleging that due to the turbulent times in the insurance industry the suggested security may not guarantee due performance of the decree. There is no doubt that the court is given unfettered discretion to determine the kind of security to be given. I think the response the plaintiff gave in answer to the defendant’s offer on security in my view is too general and cannot be used to diminish an insurance bond as a form of security.
6) In the end, I find the motion to be with merit, the same is allowed as follows:
i. The defendant/applicant is given leave of 14 days to file and serve a notice of appeal.
ii. An order for stay of execution of the decree is given pending the filing, hearing and determination of the intended appeal on condition that the defendant/applicant provides an Insurance Bond or a bank guarantee to cover the decretal sum from a reputable Insurance Company and or bank within 21 days.
iii. In default, the motion shall be deemed as having been dismissed.
iv. Costs of the motion to abide the outcome of the appeal.
Dated, Signed and Delivered in open court this 24th day of November, 2017.
J. K. SERGON
JUDGE
In the presence of:
...........................for the Plaintiff
...........................for the Defendant