[2015] KEHC 2271 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL MISC. APPLICATION NO. 288 OF 2015

STANLEY MUIRU NJUGUNA............................1ST APPLICANT

ANNE NKIROTE................................................2ND APPLICANT

VERSUS

ALICE NJERI.........................................................RESPONDENT

(Suing as a Legal Representative of the Estate of Simon Kamau(DECEASED)

RULING

1. In the motion dated 7th July 2015, Stanley Muiru Njuguna and Ann Nkirote, being the 1st and 2nd Appellants applied for interalia:

THAT the application be certified as urgent and be heard ex-parte in the first instance.

THAT there be a stay of execution of the judgment in Milimani CMCC 2551 of 2013 Alice Njeri (Suing as a legal representative of the estate of Simon Kamau (Deceased) – vs- Stanley Muiru Njuguna & Another delivered on 15th May, 2015 pending the hearing and final determination of this application.

THAT this honourable court be pleased to enlarge the time within which to file the Memorandum of Appeal out of time from the judgement of Honourable Gichobi in Milimani CMCC 2551 of 2015 of 2013 Alice Njeri (Suing as a legal representative of the estate of Simon Kamau (Deceased) – vs – Staly Muiru Njuguna & Another delivered on 15th May, 2015.

THAT there be a stay of execution of the judgement in Milimani CMCC 2551 of 2013 Alice Njeri (Suing as a legal representative of the estate of Simon Kamau (Deceased) – vs – Staly Muiru Njuguna & Another delivered on 15th May, 2015 pending the hearing and determination of the intended appeal.

THAT the costs of this application be in the cause.

2. The motion is supported by the affidavit of Sarah Weru. When served Alice Njeri, the Respondent, filed a replying affidavit she swore to oppose the motion.

3. I have considered the grounds stated on the face of the motion together with the facts deponed in the affidavits filed for and against the motion. I have also taken into account the rival oral submissions. As it appears on the face of the motion, the Appellants are basically asking to be given two orders. First, is an order to extend time to file an appeal out time and secondly, to be granted an order for stay of execution pending appeal. The history behind the motion appear to be short and straight forward. The Respondent herein in her capacity as the legal representative of the Estate of Simon Kamau, deceased, filed a compensatory suit for her own benefit and for the benefit of the deceased’s estate before the Milimani Chief Magistrates court. The claim was for damages for the fatal injuries Simon Kamau suffered as a result of the road traffic accident along Naivasha-Nairobi road on 7. 10. 2012. The 1st Appellant is alleged to have negligently driven motor vehicle registration no. KAW 732H thus knocking down the deceased. Hon. Gichobi, the learned Resident Magistrate heard the case and in the end, the Respondent was awarded ksh.1,075,411 less 30% contribution leaving a net figure of kshs.752,787/70 plus costs and interest. The Appellants are unhappy with the award hence they intend to appeal against the decision.

4. It is the Appellants’ submission that they were not given notice of when the judgment would be delivered hence they only learned of its delivery after the time to appeal had lapsed. The Respondent admits that the trial magistrate had not given a definite date for the delivery of the judgement. Instead parties were informed that judgement would be delivered on notice. With respect, I am persuaded by the ground raised and relied upon by the Appellants in support of the application for leave to appeal out of time. It is clear in my mind that the Appellants came to know of the delivery of the judgement long after the period to appeal had lapsed. Consequently I will grant them leave to appeal. I grant them leave of 10 days from the date hereof, to file an appeal out of time.

5. The second prayer is for an order for stay of execution pending appeal. It is the submission of the Appellants that unless the order is given, they will suffer substantial loss in that it will be difficult to recover the amount awarded should the appeal succeed. The Appellants also aver that the Respondent has no constant source of income hence she may not be in a position to refund the money. In her replying affidavit, the Respondent has averred that she has a regular income together with the immovable assets belonging to the deceased. I have carefully considered the rival arguments. What has come out clearly is that, though the Respondent has averred that she has a regular income, she has failed to state the sort of income. There is no statement of account to assure this court that the Respondent will be capable of refunding the decretal sum. I am convinced that the Appellants will suffer substantial loss if the order for stay is denied.

6. The second principle to be considered is the provision for security. The Appellants have proposed to deposit the entire decretal sum. I am satisfied that is a good proposal which this court accepts.

7. Consequently, I grant the order for stay pending appeal on condition that the Appellants deposits the principal sum i.e kshs.752,787/70 in an interest earning account in the joint names of advocates and or firms of advocates from both sides within 30 days from the date hereof. In default the motion will be treated as having been dismissed. Costs of the motion to await the outcome of the Appeal.

Dated, Signed and Delivered in open court this 25th day of September, 2015.

J. K. SERGON

JUDGE

In the presence of:

............................for the Appellants.

........................... for the Respondent.