[2023] KEHC 25599 (KLR)

Serem v Chepkurui & 3 others (Miscellaneous Civil Application E006 of 2023) [2023] KEHC 25599 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25599 (KLR)

Republic of Kenya

In the High Court at Kabarnet

Miscellaneous Civil Application E006 of 2023

RB Ngetich, J

November 16, 2023

Between

Cyril Kipruto Serem

Applicant

and

Joel Kipkorir Chepkurui

1st Respondent

Autocarts International Limited

2nd Respondent

Donald Ziny Kaumba

3rd Respondent

John Kipruto Sambu

4th Respondent

Ruling

1. This Ruling relates to the Applicant’s Notice of Motion dated 17th August,2023 brought under sections 1A,1B,3A,79G and 95 of the Civil Procedure Act, Order 42 Rule 6 (1)(2) and (7), Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010 seeking the following orders:-i.Spent.ii.This Honourable court be pleased to grant the applicant leave to appeal out of time in respect to the judgement/decree delivered in Kabarnet CMCC No.E004 of 2021 by Hon. Caroline R.T Ateya(PM).iii.Spentiv.That this Honourable court be pleased to grant an order of stay of execution of the judgement and/or decree delivered on the 12th May,2023 and all consequential orders arising therefrom pending the hearing and determination of the intended appeal herein.v.That this Honourable court be pleased to issue an Order for provision of a Bank Guarantee of Kshs.3,000,000/= being the maximum amount payable by the insured pending hearing and determination of the intended appeal herein.vi.That this Honouarble court be pleased to issue any other order as it may deem just, appropriate and expedient in the interest of justice.vii.That the costs of this application be provided for.

2. The application is premised on the grounds the defence case in Kabarnet Cmcc No. E004 of 2021 was closed on 23rd November, 2022 and the parties herein filed their submissions by 15th February,2023 when the matter was reserved for delivery of judgement on 27th March,2023

3. That judgement was delivered on 12th May,2023 in favour of the first Respondent against the applicant. That the said judgement was delivered in the absence of the defense counsel and therefore no stay of execution was granted.

4. That the applicant only learnt of the said judgement on the 28th July, 2023 by which time the 30 days period for lodging an appeal had lapsed and when a clerk attached to the Applicant’s firm visited the registry while following up on pending judgments and rulings, the said file was not in the registry.

5. That the applicant being aggrieved by the judgement delivered on the 12th May,2023 by Hon. Caroline R.T Ateya have instructed their advocates on record to lodge an Appeal against the entire judgment.

6. That the Applicant herein is apprehensive that the 1st Respondent will commence execution proceedings against them to their detriment and they stand to suffer substantial loss and damage if the orders sought herein are not granted and further that the intended appeal will be rendered nugatory if stay is not granted.

7. That the application is made timely and the 1st Respondent will not be prejudiced in any way if the orders sought herein are granted as prayed and it is in the interest of justice that the execution of the judgement and/or decree delivered the 12th May,2023 herein be stayed to pave way for the Applicant to exercise their right of appeal once leave to appeal out of time is granted.

8. That the judgement subject matter herein is substantial and should the execution process commence, the applicant stands to suffer irreparable loss and prejudice as their right of appeal will be curtailed and the ability of the Plaintiff/Respondent herein to refund the decretal amount is unknown.

9. That the Applicant is willing to furnish a Bank Guarantee of Kshs.3,000,000/= being the maximum amount payable by the insured, pending the hearing and determination of the intended appeal, as a condition for allowing this application for leave to appeal out of time and stay of execution pending appeal.

10. The application is supported by affidavit sworn by the Applicant Cyril Kipruto Serem on the 17th August, 2023. He avers that he is aware that the Defence case in Kabarnet Cmcc No. E004 of 2021 was closed on the 23rd November,2022 and the parties herein filed their submissions on the 15th February,2022 when the matter was reserved for delivery of Judgement on the 27th March,2023 and on the said 27th March,2023, judgment was not delivered as it was not ready and was differed to 14th April,2023 on which date the court gave directions that Judgement will be delivered on notice.

11. He restated grounds of the application and added that liability was entered at 100% in favour of the 1st Respondent as against the Applicant; General Damages of Kshs.3,000,000; Special Damages of Kshs.290,779; and future medical expenses of Kshs.200,000; Costs of the suits and interests thereon were also awarded to the Respondent herein.

12. That the said judgement was delivered without notice to his advocates on record as the court had indicated and therefore no stay of execution was granted and that by the time they learnt of the existence of the said Judgement, 30 days period set by law for lodging an appeal had already lapsed.

13. That the intended appeal herein raises numerous triable issues and points of law, as shown by the draft memorandum of Appeal, and thus it has very high chances of success.

14. That he is aware that the 1st Respondent’s means of income is unknown and he is reasonably apprehensive that if the decretal amount, which is substantive is paid to the 1st Respondent, he may not be in a position to refund the same in the event the intended appeal succeeds.

15. That they are ready and willing to furnish a Bank Guarantee of Kshs.3000,000 being the maximum amount payable by the insured, pending the hearing and determination of the intended appeal.

16. The applicant avers that if this application is not allowed as prayed then the intended Appeal will be rendered nugatory and the Applicant’s right of appeal will be injured if he is not granted leave to appeal out of time.

17. That it is in the interest of justice that this Honourable court be pleased to preserve the subject matter of the intended appeal herein by granting the orders of stay of execution as prayed for to protect and promote the Applicant’s right of appeal.

18. In response the Respondents filed a replying affidavit sworn by their Advocate George Kirumba Mbiyu on the 20th September,2023. He avers that he is fully conversant with the issues in respect to the suit herein and that the application lacks merit all circumstances considered.

19. That he believes that the Applicant of his own free will opted to not to attend court on the 12th May,2023 a date taken by consent by the parties. That the Judgement date was taken by consent of all parties on the 10th May,2023.

20. That his firm wrote to the Applicant through a letter dated 18th May,2023 outlining the aggregate sum of damages as awarded in the Judgement dated 12th May,2023 and further wrote to the Applicant through letter dated 4th July,2023 requesting full remittance of the aggregate sum of Kshs.3,721,687/= since the 30 days stay of execution of judgement had lapsed.; and finally wrote to the Applicant through letter dated 28th August,2023 threatening to apply for execution without further notice and the Applicant herein has never responded to any of the aforementioned correspondences to this date.

21. That he has a belief that the Applicant knew that Judgement had been delivered and this application has been brought with unreasonable delay, which delay has not been explained and the application dated 17th August,2023 is an afterthought intended to delay the fruits of justice to the 1st Respondent herein.

22. That if the application is allowed, the Applicant should pay half (1/2) the decretal sum and costs and deposit the other half in a reputable Bank in the joint names of both counsel for the parties within a specified period. That he would otherwise pray that the Application be dismissed with costs.

Applicant’s Submissions 23. The Applicant filed Written Submission on 24th October,2023 and contends that this application has merit as the court has discretion to extend time to file appeal and cited the case of Aviation Cargo Ltd Vs St. March Freight Services Ltd and Edith Gichungu Koine Vs Stephen Njagi Thoithi [2014] eKLR where the court in considering the application for extension of time, advised on factors to be considered.

24. The Applicant submits that this Application was brought with reasonable delay and the reason for not appealing within time is well proven in their application. That they have provided a CTS extract marked as CKS -1 which clearly supports their assertion that Judgement was delivered without issuance of Judgement notice to the Applicant. That it is not in dispute that the Judgement in the suit was adjourned five times and as a result of the above stated occurrences, the Applicant was not able to obtain an order for stay of execution neither was he aware that the judgement was read in order to take necessary action. That from the evidence adduced through his counsel on record he was vigilant in the matter and had he learnt that the judgement would be read or have been aware of the terms of it, he would have appealed within time. That proof is in fact that he immediately started to follow up for a copy of the Judgement the minute he learnt that it had been delivered.

25. That prior to the said date, he and his counsels on record were not aware of the terms of the Judgement; thus had no information to assist with the immediate filing of a memorandum of appeal but nevertheless, within 21 days, the Applicant had already filed an appeal.

26. That the reason for the delay in filing the appeal was inadvertent and excusable due to the confusion in issuance of judgement dates and the actual delivery of the Judgement. They rely in the findings in the Court of Appeal case of Belinda Mural & 9 Others Vs Amos Wainaina [1978] eKLR and Shah H. Bharmal & Brothers Vs Kumar [1961] EA 679.

27. That despite the fact that the Applicant nor their counsel have any faults as to the delay in filing the Appeal, they submit that the error should not be visited upon the innocent litigant whose only desire is to prosecute his matter in a just and fair manner. That they have satisfied all the factors listed by the guiding authority namely Edith Gichungu Koine Vs Stephen Njagi Thoithi [2014]eKLR. They submit that the Respondents will not be prejudiced if their application is allowed. That in the spirit of good faith and to show that they are serious about prosecuting the matter, they have proposed to furnish a Bank Guarantee of Kshs.3,000,000/=.

28. They submit that their motive is to ensure that the Applicant is not locked out. They aver that he is entitled to the right to be heard. They are guided by the case of Kamlesh Mansukhalal Damki Patni Vs Director of Public Prosecutions & 3 Others [2015] eKLR. The applicants invoke Article 50(1) and 48 of theConstitution and urge this Honorable court to find that this application has merit and allow it as prayed.

29. The Respondent on their part submits that the application dated 17th August,2023 lacks merit since it has been brought with unreasonable delay; that the Applicant has failed to disclose sufficient reasons as to why this application has been brought with unreasonable delay. That this Honourable court should deny the prayer for temporary order of stay of execution of the judgement and/or decree delivered on the 12th May, 2023. That the conditions for stay are set out in Order 42 Rule 6(2)(a) of the Civil Procedure Rules 2010.

RESPONDENT’S SUBMISSIONS 30. The Respondent submits that in Leo Sila Mutiso Mwangi Vs Kenya Airways Ltd (2003) KLR 486, the court stated:-“……a plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons.”

31. That Order 42 Rule 6 (2)(a) of the Civil procedure Rules provides that for a court to grant stay of execution pending appeal, it has to be satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay.

32. They submit that this Application was filed more than three months after the date of the Judgement. That the Applicant failed to reach out and respond to any of the correspondences to raise any concerns pertaining to the Judgement and/or decree delivered on the 12th May,2023.

33. It is submitted that the Application has been brought before this court with unreasonable delay and granting it will tremendously prejudice the 1st Respondent herein by denying him the fruits of justice contrary to Article 48 and Article 50(1) of the Constitution of Kenya 2010.

34. That in the alternative and without prejudice, they submit that if the Application is allowed, the Applicant should pay half (1/2 ) the decretal sum and costs, and deposit the other half in a reputable bank in the joint names of both counsel for the parties within a specified period. They rely in the case of Kenya Commercial Bank Ltd Vs Sun City Properties Ltd & 5 Others [2012] eKLR where it was held:“In an application for stay, there are always two competing interest that must be considered. These are that a successful litigant should not be denied the fruits of his Judgement and that unsuccessful litigant exercising his undoubted right of appeal should be safe guarded from his appeal being rendered nugatory. These two competing interests should always be balanced.”

35. That in a bid to balance the two competing interests, courts should usually make an order for suitable security for the due performance of the Decree as the parties wait for the outcome of the appeal. That this position has been ascertained in Tabro Transporters Ltd Vs Absalom Dova Lumbasi [2012] eKLR where the requirement to furnish security was considered as the just thing to do when balancing the two competing interests. The 1st Respondent rejects the proposal to furnish bank guarantee and insists on money being deposited.

36. The respondent proceeds to submit that Section 95 of the Civil Procedure Act confers authority upon this Honourable court to exercise its discretion in extending the time for filing appeals out of time. Section 79G is clear that such permission may be granted provided the Applicant can establish, to the satisfaction of the court that there existed valid and substantial reasons for their failure to file the appeal in time.

37. That the factors to be considered before allowing the extension of time in such a matter were succinctly set out in the case of Leo Sila Mutiso V Rose Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1997(Unreported) which position was reiterated in the case of Mega Pack (K) Limited V United Aryan (EPZ)(2019)eKLR.

38. That further in Thuita Mwangi V Kenya Airways Ltd (2003) eKLR the court of appeal at Nairobi discussed the requirements on the question of whether or not there should stay of execution pending appeal.

39. That further in order to grant an extension of time, this Honourable court must be satisfied that the grounds of appeal in support of the Application have been fully enumerated. That affidavit in support of the application as well as the application itself do not show that there is no arguable appeal. The Applicant in this matter has failed to clearly outline the grounds of the intended appeal and has only elaborated on the repercussions that may result in the execution of the Judgement dated 12th May,2023.

40. That without a full outline of grounds of appeal, this Honourable court cannot fully disembark on these issues and thus cannot determine successfully whether to grant leave to file an appeal out of time. That in the absence of any grounds of appeal in the application dated 7th August,2023, this court’s ability to make a determination in this regard has been significantly limited. That the intended appeal is on the issue of quantum and the injuries to the 1st Respondent were severe.

41. The Respondent urged the court to disallow the Application dated 17th August,2023 in its entirety. In the alternative, and without prejudice to the foregoing, the respondent reiterate that if the application is allowed, the Applicant should pay half (1/2) the decretal sum and costs and deposit the other half in a reputable bank in the joint names of both counsel for the parties within specified period in order to balance the competing interests of both parties in this matter.

Analysis and Determination 42. Section 79G of the Civil Procedure Act is the operative part in answering the question as to whether the prayer to enlarge time to file the appeal is merited. Section 79G of the Civil Procedure Act provides that:“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

43. From the provision above, it is noteworthy that the phrase used is “an appeal may be admitted out of time”. This therefore means that an appeal may indeed be admitted out of time. However, the intended appeal ought to have already been filed before or together with an application seeking leave to extend time for filing an appeal. In Mugo & others Vs. Wanjiru & anor [1970] EA 482 the court stated as follows:-“Clearly, as a general rule the filing and service of the notice of appeal ought to be regularized before or at least at the same time as an application is made to extend the time for filing the record and the fact that this has not been done might be a reason for refusing the application or only allowing one on terms as to costs. But it does not mean that such an application must be refused.”

44. The decision whether or not to grant leave to appeal out of time or to admit an appeal out of time is an exercise of discretion just like any other exercise of discretion by the court. Some of the factors that aid Courts in exercising the discretion as to whether to extend time to file an appeal out of time were enumerated by the Court of Appeal in Thuita Mwangi v Kenya Airways LTD [2003] eKLR. They include the following:i.The period of delay;ii.The reason for the delay;iii.The arguability of the appeal;iv.The degree of prejudice which could be suffered by the if Respondent the extension is granted;v.The importance of compliance with time limits to the particular litigation or issue; andvi.The effect if any on the administration of justice or public interest if any is involved.

45. The judgment was delivered on 12th May,2023 while the present application was filed on 17th August,2023, three (3) months after the lapse of the 30 days stay of execution granted by the trial court. The appellant has submitted that the delay was occasioned by the fact that the court failed to issue a notice for the delivery of judgement as indicated earlier when they appeared before court. That the judgment was deferred severally and the court delivered the judgement in their absence. They state that it was only after the clerk of the said firm had followed up severally on the pending judgements from the registry that he found out that the same was delivered. The 1st Respondent has indicated that through their advocate on record, they wrote several letters to the Applicant after the delivery of the judgment and none of the letters was responded to. If that be the case, that amount to notice of delivery of judgment to the Appellant.

46. Under Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 that empowers the court to stay execution, either of its judgement or that of a court whose decision is being appealed from, pending appeal. The conditions to be met before stay is granted are provided for under Rule 6(2) of Order 42 and states as follows:“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; andb.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.”

47. The Court of Appeal in Butt v Rent Restriction Tribunal [1982] KLR 417 gave guidance on how a court should exercise discretion and held that:-“1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”

48. Substantial loss is a factual issue which must be raised in the supporting affidavit and further supported by evidence. The applicant has not demonstrated the substantial loss he will suffer should the court disallow his prayer for stay. In the case of Machira T/A Machira & Co. Advocates vs East Africa Standard [2002] eKLR Kuloba J. as he then was held that an applicant’s ground for substantial loss must be specific and detailed as it is not enough merely stating that substantial loss will result or that if the appeal is successful, it will be rendered nugatory. The total sum is Kshs. 3, 721, 687/=.

49. However, in view of the fact that delay is for a period of 3 months, in the interest of justice I will allow extension of time to file appeal with conditions as part of delay in my view is attributed to delay in delivery of judgment or failure to deliver judgment on dates scheduled.

50. Order 42 rule 6 requires the provision of security as a pre-condition for allowing a request to stay execution. The dispute arises from damages awarded owing to a road traffic accident where the 1st Respondent suffered severe injuries. The amount owing is attracting interest. The applicant cannot have a blanket stay of execution without providing reasonable security. The applicant has stated that in the spirit of good faith and to show that they are serious about prosecuting the matter, they have proposed to furnish a bank guarantee of Kshs.3,000,000/=. The 1st Respondent on their part states that if the court is inclined towards allowing the present application, the applicant should pay half the decretal sum and costs and deposit the other half in a reputable Bank in the joint names of both counsel for the parties within a specified period. In my view, this will balance the competing interests of both parties in this matter.

51. From the foregoing I do allow the application with conditions set out in the final orders hereunder.

Final Orders: -i.the application dated 17th August,2023 is hereby allowed.ii.Leave is granted to the applicant to file appeal out of time against the judgment delivered in Kabarnet CMCC No. E005 of 2021. iii.The applicant to file and serve his Memorandum of Appeal within fourteen (14) days hereof.v.Execution of the Judgment/decree in Kabarnet CMCC No. E005 of 2021 is hereby stayed pending the hearing and determination of the appeal.v.The applicant to pay half the decretal sum and costs to the 1st Respondent and deposit the other half in a reputable Bank in the joint names of both counsel for the parties within thirty (30) days hereof.vi.In default of complying with order number four (4), the orders staying execution shall lapse and the respondent shall be at liberty to execute.vii.Costs to abide by outcome of the appeal.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KABARNET THIS 16TH DAY OF NOVEMBER 2023. .................RACHEL NGETICHJUDGEIn the presence of:Mr. Karanja – Court Assistant.Mr. Mbiyu for Respondents.Ms Keninto for Applicant.