[2022] KEHC 9853 (KLR)

Sun Africa Hotels Limited v Brandables (Kenya) Limited (Civil Appeal E344 of 2020) [2022] KEHC 9853 (KLR) (Civ) (8 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9853 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E344 of 2020

JK Sergon, J

July 8, 2022

Between

Sun Africa Hotels Limited

Applicant

and

Brandables (Kenya) Limited

Respondent

Ruling

1. The appellant/applicant has taken out two (2) applications. The first application is the Notice of Motion dated 6th July, 2021 and supported by the grounds set out on its body and the facts stated in the affidavit of Sanjay Kishorekumar Mashru and the further affidavit of Odhiambo M.T. Adala.

2. The second application is dated 16th November, 2021 and stands supported by the grounds laid out on its face and the facts stated in the affidavit of Odhiambo M.T. Adala.

3. The two (2) applications mentioned hereinabove are essentially seeking similar orders: being an order for admission of the appeal out of time against the judgment delivered on 20th December, 2019 in Milimani CMCC no. 448 of 2016; an order for stay of execution of against the abovementioned judgment and decree; and an order directing that the whole amount deposited by the applicant before the lower court be transferred to the High Court and be held as security.

4. The first application is opposed by way of the replying affidavit sworn by the respondent’s Director, Somesh Maini on 1st February, 2022.

5. The second application stands opposed by way of the Grounds of Opposition dated 29th November, 2021 wherein the respondent raises the following grounds:a)The court lacks jurisdiction to hear and determine the application.b)The application is devoid of merit.c)There has been undue delay in filing the application herein.d)In view of the foregoing, the application herein is an abuse of the court process.

6. When the parties appeared before the court, it was agreed that the two (2) applications would be consolidated since they largely seek the same orders.

7. Going by the record, it was indicated that the parties would file written submissions on the two (2) applications; however, at the time of writing this ruling, none of the submissions had been availed to this court.

8. I have considered the grounds laid out on the body of the respective applications; the facts deponed in the supporting and replying affidavits; and the Grounds of Opposition.

9. As earlier noted, both applications are seeking similar orders and I will therefore address them contemporaneously, beginning with the order seeking for enlargement of time to appeal/for leave to have the appeal admitted out of time.

10. The proviso of 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.

11. Furthermore, under the provisions of Section 95 of the Civil Procedure Act and Order 50, Rule 6 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.

12. The Court of Appeal in the case of Thuita Mwangi v Kenya Airways Ltd [2003] eKLR 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.

13. Under the first condition touching on length of delay, the applicant indicates that the impugned judgment was delivered on 20th December, 2019 while the two (2) applications were brought close to two (2) years later. In my mind, there has clearly been a prolonged delay in filing the applications. However, I do not find the delay to be so prolonged as to be deemed inordinate in the circumstances.

14. Concerning the reasons for the delay, the applicant through its respective deponents, explained that the delay was occasioned by the difficulty experienced by its advocate in obtaining the certified typed copies of the proceedings and judgment. The applicant also attributed part of the delay to the health challenges faced by its advocate; Odhiambo M. T. Adala; who also swore a further affidavit in support of the first application and annexed documentation to support his averments.

15. In reply, Somesh Maini states on behalf of the respondent that the applicant has not given any reasonable explanation for the delay.

16. Upon considering the explanation given by the applicant for the delay and upon observing that part of the time was taken up in pursuing an application for a stay of execution before the trial court and which was subsequently dismissed, I find the reasons afforded by the applicant for the delay, to be reasonable in the circumstances.

17. Under the condition on whether or not an arguable appeal exists, the applicant states that it has demonstrated an arguable appeal by way of the memorandum of appeal which was filed out of time.

18. In response, the respondent takes the view that no arguable appeal exists since the trial court correctly applied its mind to the facts and law, and arrived at a proper finding on the respondent’s claim.

19. Upon my perusal of the grounds of appeal raised in the memorandum of appeal on record, I note that the appeal is challenging the finding of the trial court on liability and in the award made subsequently. I am therefore satisfied that the applicant has demonstrated arguable points of law and fact in its appeal.

20. In addressing the final condition on prejudice, the applicant asserts that the respondent does not stand to be prejudiced if the order sought is granted.

21. 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 applicant who is aggrieved by the judgment of the trial court. I therefore find it reasonable for the applicant to be given the opportunity of challenging the impugned judgment on appeal.

22. The second prayer which was sought in both applications 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.

23. The first condition being that the application must have been brought without unreasonable delay has already been addressed hereinabove.

24. The second condition touches on substantial loss to be suffered by an applicant.

25. The applicant on its part is apprehensive that unless the order for a stay of execution sought is granted, the respondent will likely proceed to execute the decree.

26. The respondent on its part argues that the applicant has not satisfied the conditions for granting the order sought in this instance.

27. Upon weighing the competing interest of the parties herein on this subject, I am satisfied that the applicant has reasonably demonstrated that it stands to suffer substantial loss if the order for a stay of execution is not granted.

28. Under the final condition which is the provision of security for the due performance of the decree or order, the applicant states that upon filing an application for stay of execution before the lower court, the court directed it to deposit the principal sum of Kshs.2,423,608. 22 in court and which directions the applicant complied with.

29. The applicant therefore urges this court to order that the abovementioned sum be transferred to the High Court to act as security for the due performance of the decree. I find this request to be reasonable in the circumstances.

30. In the end therefore, the Motions dated 6th July, 2021 and 11th November, 2021 are found to be meritorious and hence they are allowed as prayed, thus giving rise to the following orders:i.The memorandum of appeal filed on 18th June, 2021 is hereby admitted out of time, subject to payment of the requisite court filing fees.ii.The appellant/applicant shall serve the memorandum of appeal upon the respondent within 14 days from this day.iii.The whole sum deposited before the lower court as security for the due performance of the decree shall be retained pending appeal.iv.There shall be a stay of execution of the judgment delivered on 20th December, 2019 pending the outcome of the appeal.v.Costs of the Motion shall abide the outcome of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 8TH DAY OF JULY, 2022. ..........................J. K. SERGONJUDGEIn the presence of:……for the Appellant/Applicant……………………………for the Respondent