[2022] KEHC 1571 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

MISC.CIVIL APPLICATION NO. 144 OF 2021

SCANIA EAST AFRICA LTD................................................................1ST APPLICANT

JOHN WAITHAKA THUO....................................................................2ND APPLICANT

GREENLINE BUS SERVICES LTD......................................................3RD APPLICANT

VERSUS

PATRICK MUTISYA KIOKO......................................................................RESPONDENT

RULING

1. The applicants Notice of Motion dated 2nd August 2021 prays that they be granted leave to file their appeal out of time and meanwhile pending the said intended appeal there be stay of execution of the lower court’s judgment delivered on 21st May 2021. The application is supported by the sworn affidavit of Kelvin Ngure, the Claims director at Directline Assurance Company dated the same date and the grounds on the face of it.

2. He deposed that they had instructed the firm of Kairu & McCourt Advocates and later on the firm of Kimondo Gachoka & Company Advocates to defend this suit for and on behalf of the applicants. He deposed further that he was aware that judgment in Nakuru CMCC No. 02 of 2018 was delivered on 21st May 2021 whereby the Honourable court apportioned liability between the plaintiff and the defendants in the ratio 50%, 50%, and also awarded the plaintiff Kshs. 300,000/= as damages and Kshs. 12, 250/= as special damages as well as costs of the suit.

3. He went on to dispose that he had been informed by his advocates on record that the applicants herein were to be notified of the date of delivery of the judgment herein and their consent given if judgment was to be delivered electronically. That however, the applicants upon following up on the judgment and upon inquiring from the court registry were informed that judgement had been delivered on 21st May 2021 in the absence of both parties.

4. The applicants are dissatisfied with the said judgment wholly and wished to seek leave of this honourable court to appeal out of time against both liability and quantum. That by the time the applicants’ advocates were being issued with instructions to file an appeal against the said decision, the period within which to file the appeal had since lapsed. The delay to file the appeal on time was not intentional and/or deliberate.

5. He deposed further that the applicants had no stay orders in this matter and unless an order of stay of execution is granted, the applicants’ application to appeal out of time and the consequent appeal will be rendered nugatory and the applicants shall suffer irreparable loss and damage. That the applicants were ready, willing to furnish such reasonable security by way of bank guarantee as a condition for granting the stay orders.

6. The respondent vide his replying affidavit dated 27th September 2021 opposed the said application arguing that the same was only meant to prevent and or delay him from enjoying the fruits of his judgment rendered by the trial Court on the 21st May, 2021. That he had been informed by his advocate which information he held to be true that the applicants have not given any plausible explanation on the delay in seeking the stay orders and filing their appeal out of time or demonstrated evidence of substantial loss they would suffer if the stay orders are not granted.

7. He urged the court to direct that 3/4 of the decretal sum be paid to him and the balance be deposited in an interest earning account in the joint names of the advocates on record for the parties within 14 days from the date of the order, if it was inclined to grant stay orders.

8. The court ordered parties to file written submissions which they have complied.

Applicants Submissions

9. It was submitted for the applicants that the under section 79G of the Civil Procedure Act, the proper procedure was to seek leave and have the same filed. The courts attention is drawn to the case of Mwangi v Kenya Airways Ltd, where the Court of Appeal listed four issues which the court ought to take into consideration in deciding whether or not to grant extension of time to appeal. That the same entailed; the length of delay, the reason for delay, possibility, the chances of the appeal succeeding if the application is granted and the degree of prejudice to the respondent if the application is granted.

10. While placing reliance on the case of Nairobi HCCA 354 of 2015 APA Insurance Ltd v Michael Kinyanjui Muturi, the applicants submitted that no prejudice whatsoever stood to be suffered by the respondent as they were willing to give bank guarantee.

11. On the issue of stay of execution, they referred the court to Order42 rule 6(2) of the Civil Procedure Rules and Halan & Another v Thornton & Turpin [1963] Limited [1990] KLR. They urged the court to allow their application.

Respondent’s Submissions

12. The respondent in his submission identified four issues for determination namely; whether the applicant can be granted leave to file their appeal out of time. The respondent submitted that there was no plausible explanation that had been given by the applicants as to why the appeal was not filed within the stipulated time. That the lower court judgment was delivered in 21st May 2021 and it was not until 5th August 2021 that the applicant came with the instant application. He draws the court’s attention to the case of First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others Nairobi (Milimani) HCCC No. 2255 of 2000 [2002] 1EA 65, on what it should consider in exercising the discretion whether or not to enlarge time.

13. On whether stay of execution should be granted, the respondent draws the court’s attention to the provisions of Order 42 rule 6(1) of the Civil Procedure Rules, 2010 and the case of Butt v Rent Restriction Tribunal [1982] KLR 417.

14. On the third issue the respondent submitted that no substantial loss will be occasioned to the 2nd and 3rd applicants if he enjoys the fruits of his decree since execution was a lawful process.

15. Lastly, on whether security should be furnished, he submitted that if the court was to be persuaded to grant the application, then it should order that the 2nd and 3rd applicants deposit the outstanding decretal amount in a joint interest earning account within a stipulated time as security pending hearing and determination of the intended appeal.

Analysis and Determination

16. The principles governing leave to appeal out of time are settled. The successful applicant must demonstrate “good and sufficient cause” for not filing the appeal in time. In Thuita Mwangi v Kenya Airways [2003] e KLR, the Court of Appeal while considering Rule 4 of the Court of Appeal Rules which is similar to section 79G of the Civil Procedure Act, reiterated its decision in Mutiso v Mwangi [1997] KLR 630 as follows:

“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that generally the matters which this court takes into account in deciding whether to grant an extension of time are; first, the length of delay; secondly, the reason for the delay; thirdly (possibly) the chances of appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the Respondent of the application is granted.”

17. The Supreme Court in the case of Nicholas Kiptoo Korir Arap Salat Vs. IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The Court stated inter alia that:

“The underlying principles a court should consider in exercise of such discretion include;

1. Extension of time is not a right of any 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 laying a basis to the satisfaction of the court;

3. Whether the court should exercise the discretion to extend time, is a consideration to be made a case- to-case basis;

4. Whether there is a 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 Respondent if the extension is granted;

6. Whether the application has been brought without undue delay.

7. ......”

18. It is not disputed that the judgment of the lower court was delivered in the absence of both parties on 21st May, 2021 as it appears that upon inquiry on several dates prior to this the trial court indicated to the parties that the judgment was not ready and the same would be delivered on notice. It is the applicants’ case that neither them nor their advocates received any notification from the trial court concerning the date when the Judgment was to be delivered. That they only found out that judgment had been delivered on the said date upon inquiry at the court registry.

19. They then filed the present application on 2nd August 2021 the delay herein is approximately three (3) months which in my view is not inordinate, considering that no notice was issued to the parties and the same is not disputed by the respondent.

20. Further, while the discretion of the court is unfettered, a successful applicant is obligated to adduce material upon which the court should exercise its discretion, or in other words, the factual basis for the exercise of the court’s discretion in his favor. On the question of the exercise of judicial discretion, the Supreme Court observed in the case of Telkom Kenya Limited V. John Ochanda and 996 Others [2015] eKLR that:

“In instances where there is delay in filing the notice of appeal, this Court has inherent jurisdiction to admit such appeal, provided sufficient explanation is proffered for the cause of delay. The design and objective of the Supreme Court Rules is to ensure accessibility, fairness and efficiency in relation to this Court. Parties should comply with the procedure, rather than look to the Court’s discretion in curing the pleadings before it. This Court’s position is that the circumstances of each case are to be evaluated, as a basis for arriving at a decision to intervene, in instances where full compliance with procedure has not taken place….

It is this Court’s position of principle that prescriptions of procedure and form should not trump the primary object of dispensing substantive justice to the parties. However, the Court will consider the relevant circumstances surrounding a particular case and will conscientiously ascertain the best course.….”

21. With regard to the request for stay of execution pending appeal, the parameters to be taken into account by the court in determining such an application are contained in Order 42 Rule 6(2) of the Civil Procedure Rules, which provides as follows –

6(2) No order for stay of execution shall be made under sub rule (1) unless –

a) 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; and

b) Such 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.

22. Will the applicants suffer substantial loss if the stay orders sought are not granted? This a money decree for an amount which was been determined by the trial court and the intended appeal is on liability and quantum. The applicants may stand to suffer substantial loss if stay is not granted. On the other hand, on appeal on the quantum, the respondent also stands to suffer prejudice if no amount is paid to him in the meantime. There is therefore need to balance both parties interest.

23. It has not been demonstrated for instance that the respondent may not refund the decretal sum if the applicants are successful in their appeal. Neither has he demonstrated his pecuniary capacity.

24. However, for the interest of justice and all the parties herein the court makes the following orders;

a) The applicants are hereby granted leave to file and serve their memorandum of appeal within 14 days from the date herein.

b) The applicants shall pay to the respondent half of the decretal sum together with assessed costs within thirty days (30) from the date herein and the balance shall await the outcome of the appeal.

c) In default of (b) above the respondent shall have the liberty to execute for the whole amount.

d) Costs of this application to the respondent.

DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 17TH DAY OF MARCH 2022.

H K CHEMITEI.

JUDGE