[2022] KEHC 15846 (KLR)

Sapani v Bank of Africa Kenya Limited (Civil Appeal E721 of 2022) [2022] KEHC 15846 (KLR) (Civ) (2 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15846 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E721 of 2022

JK Sergon, J

December 2, 2022

Between

Brenda Waka Sapani

Applicant

and

Bank of Africa Kenya Limited

Respondent

Ruling

1. This ruling is predicated on the notice of motion dated September 8, 2022 taken out by the appellant/applicant and supported by the grounds set out on its body and the facts stated in the affidavit of the applicant. The applicant sought for an order for leave to appeal out of time against the ruling and order delivered on August 31, 2021 as well as a further order for a stay of execution in Milimani CMCC No 938 of 2019 pending the hearing and determination of the appeal.

2. In opposing the said motion, the respondent filed the replying affidavit of the recoveries officer Felix Muhati.

3. The instant motion was canvassed through oral arguments whereby the parties’ respective advocates chose to rely on the relevant documents filed.

4. I have considered the grounds laid out on the body of the motion; the facts deponed in the affidavits supporting and opposing the motion and the reiterating oral submissions

5. 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.

6. 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.

7. 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.

8. 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.

9. Under the first condition touching on length of delay, while it is apparent from the record the parties are in agreement that the impugned ruling was delivered on August 31, 2021 which is close to 1 year 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.

10. Concerning the reasons for the delay, the applicant explained that the delay was occasioned by the fact that no notice of entry of judgment or decree and certificate of costs was served on them and neither were her advocates, until August 29, 2022 when the matter came up before the magistrate for directions. The respondent argued in his grounds that the applicant has not given any reasonable explanation for the delay and does not warrant the court’s intervention to regularize the intended appellate process.

11. Upon considering the explanation given by the applicant, I find the same to be reasonable in the circumstances.

12. As relates to the condition on whether or not an arguable appeal exists, it is the applicants’ assertion on the one hand that they have an arguable appeal which raises valid points of law and fact. The respondent on the other hand contends that the applicant has not demonstrated arguability of the intended appeal with probability of success.

13. 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 trial court for entering a default judgment while there was a defence on record. I am therefore satisfied that the applicant has demonstrated arguable points of law and fact in their appeal.

14. Upon my perusal of the record, it is apparent that the judgment was in favour of the respondent herein and against the applicant. 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 on damages. I therefore find it reasonable for the applicant to be given the opportunity of challenging the subordinate court’s default judgment.

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 applicant on her part contends that the respondent commenced execution proceedings on March 23, 2022 by an application seeking her to civil jail for failure to pay the decretal amount and that unless a stay of execution of the judgment and decree of the subordinate court is granted, the respondent will proceed with execution at any time, to her detriment.

19. The Court of Appeal in the case of Butt v Rent Restriction Tribunal [1979] eKLR when it held that in considering an application for a stay of execution, the courts ought to exercise their discretion in a manner that will not render the appeal in question nugatory, if successful.

20. I also observed that the motion; supporting affidavit of the applicant; and the draft memorandum of appeal annexed to the motion, that the default judgment when there is a defence on record is one of the issues to be challenged on appeal.

21. I am also alive to the reality that unless the applicant is granted an opportunity to defend its case, it stands to be condemned unheard, thereby undermining the dictates of substantive justice and violating the applicant’s constitutional right to be heard on its defence in the dispute before the same is conclusively determined.

22. From the foregoing, I am convinced that the applicant has reasonably shown the substantial loss it may suffer should the order for a stay of execution be denied.

23. Order 42 rule 6(2)(b) of the Civil Procedure Rules stipulate in mandatory terms that the third condition that a party needs to fulfil so as to be granted an order for stay pending appeal is that he must furnish security. The applicant herein have given the issue of furnishing security a wide berth. This Court notes that in Butt v Rent Restriction Tribunal (supra) the Court of Appeal stated that a court can order security upon application by either party or on its own motion and that failure to put security for costs as ordered will cause the order for stay of execution to lapse

24. In the case of Aron C Sharma vs Ashana Raikundalia T/A Rairundalia & Co Advocates [2014] eKLR, the Court held that-'The purpose of the security needed under order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.'

25. Bearing in mind that the nature of the security that may be deposited is left at the discretion of the court, I hereby allow the application dated September 8, 2022 and make the following orders-i.The applicant is granted leave of 14 days to file an appeal out of time.ii.There shall be an order for stay of execution of the ruling and order dated on August 31, 2021 in CM Comm 938 of 2019 pending the hearing and determination of the intended appeal on the condition that the applicant deposits Kshs 1,000,000/= (one million) in an interest earning account in the joint names of the advocates and or firms of advocates within 45 days from the date of this ruling in default of which the stay order shall lapse.iii.Costs of the motion shall abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 2ND DAY OF DECEMBER, 2022. ………….…………….JK SERGONJUDGEIn the presence of:……………………………. for the Appellant/Applicant……………………………. for the Respondent