[2020] KEHC 1049 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. E037 OF 2020

SUPER METRO LIMITED................................................ APPELLANT/APPLICANT

-VERSUS-

BHN (A male minor suing through his father and next friend HAN)....RESPONDENT

RULING

1. The subject matter of this ruling is the Notice of Motion dated 6th August, 2020 taken out by the appellant/applicant herein, in which it sought for an order for stay of execution of the ex parte judgment delivered on 11th March, 2019 in CMCC NO. 9070 of 2018 and all consequent orders, pending the hearing and determination of the appeal; and a further order for leave to lodge the main appeal out of time against the ruling delivered on 30th April, 2020 in the afore-cited case.

2. The Motion is supported by the grounds set out on its body and the facts stated in the affidavit of Nelson Mwangi Nduki,a director and shareholder of the applicant.

3. In opposing the said Motion, the respondent filed the replying affidavit of advocate Nelson Kaburu Felix, to which Nelson Mwangi Nduki rejoined with his supplementary affidavit sworn on 28th September, 2020 followed by the further affidavit sworn by Nelson Kaburu Felixon 1st October, 2020.

4. When the Motion came up for interparties hearing before this court, the parties filed and exchanged written submissions.

5. 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 rival submissions and authorities cited therein.

6. Before I delve into the merits of the Motion, I will address my mind to one issue which, though not raised in the applicant’s submissions, is crucial.

7. In brief, the applicant argues in its submissions that the respondent purported to file the further affidavit of Nelson Felix Kaburu without leave of the court and that the same sought to introduce new evidence which the applicant has not had the opportunity to respond to. In his submissions, the respondent contends that execution has not been effected.

8. Upon perusal of contents of the further affidavit mentioned hereinabove, I note that Mr. Nelson Felix Kaburu essentially states that the application for a stay of execution has been overtaken by events since the motor vehicle which had been attached in execution of the decree has since been sold by public auction.

9. I observed that whereas it is apparent that a sale purportedly took place arising out of the ex parte judgment, I concur with the submission of the applicant that this is a new issue which was never previously raised in the replying affidavit and would therefore amount to an ambush since the applicant has had no opportunity to respond to it. It is also apparent from the respondent’s arguments in submission that the position taken in the further affidavit has been abandoned.

10. In the premises, I am convinced that it would be fair and in the interest of justice to have the further affidavit of Nelson Felix Kaburu expunged from the record.

11. It is evident that the Motion is seeking twin orders, the first being for the enlargement of time to appeal and for leave to appeal out of time against the impugned ruling of 30th April, 2020, which I shall now address.

12. Section 79G of the Civil Procedure Act sets the timelines for lodging an appeal against the decision of a subordinate court as 30 days from the date of the decree or the order being appealed against. The provision goes on to express that an appeal may be admitted out of time where sufficient cause has been shown.

13. Furthermore, 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.

14. On the first condition on length of delay, the respondent is of the view that there has been an unreasonable delay in bringing the Motion, whereas the applicant is of the view that the Motion has been brought without unreasonable delay.

15. A perusal of a copy of the impugned ruling which was annexed to the Motion, it is not in dispute that the said ruling was delivered on 30th April, 2020 which is close to four (4) months prior to the filing of the Motion. In my mind, while there has clearly been a delay in bringing the Motion, I do not think that such delay is inordinate.

16. Concerning the reason(s) for the delay, Nelson Mwangi Nduki in his supporting affidavit to the Motion explains that the delay was occasioned by the closure of the courts owing to the global Covid-19 pandemic and was further occasioned by the difficulties experienced by the advocate of the applicant in mapping and being linked to the e-filing platform of the courts.

17. In response, the learned advocate Nelson Felix Kaburu stated that the delay has not been sufficiently explained. Moreover, the respondent in his submissions argues that no valid reasons have been given to explain the prolonged delay.

18. Upon considering the above, I am alive to the fact that the global Covid-19 pandemic disrupted the operations of the courts and the country at large since the month of March. I am also alive to the fact that there was temporary closure of the courts and a number of other offices thereafter, and that upon resumption of court operations, there were challenges setting up and adjusting to the online platforms for some time. Consequently, I find the explanation given for the delay to be reasonable in the circumstances.

19. Concerning whether or not an arguable appeal exists, Nelson Mwangi Nduki states in his supplementary affidavit that the appeal raises arguable and weighty issues of fact and law that ought to be heard on merit. In reply, Nelson Felix Kaburu states that no arguable appeal exists since the appeal in question has no chances of success.

20. Upon my perusal of the grounds of appeal raised in the draft memorandum of appeal annexed to the Motion, I find that the appeal is primarily against the decision of the trial court to decline to set aside the ex parte judgment already in place. The applicant is equally arguing that there was no proper service of summons and that it has a triable statement of defence. Taking these factors into account, I am satisfied that the applicant has established arguable points of law and fact in its draft memorandum of appeal.

21. Under the final principle on prejudice, Nelson Mwangi Nduki states in his supporting affidavit that the respondent does not stand to be prejudiced if leave is granted to the applicant to file its appeal out of time. The respondent did not address this issue directly in any of the affidavits filed on his behalf.

22. It is not in dispute that an ex parte judgment was entered in favour of the respondent. It is therefore only natural for the respondent to be lawfully entitled to enjoy the fruits of his judgment. Nevertheless, it would not be in the interest of justice to lock out the applicant who is aggrieved by the ruling of the trial court declining to set aside the ex parte judgment. I therefore find it reasonable for the applicant to be given the opportunity of challenging the subordinate court’s decision on appeal.

23. In the case of Blue Nile E. A. Ltd v Lydia Gode Yusuf & another [2018] eKLRit was held inter alia as follows:

“The right to be heard is a Constitutional right provided for under Article 48 of the Constitution of Kenya, and in all circumstances it will be in the interest of all parties to hear a matter on merit. The only consideration the Court ought to take into account is to balance the rights of both parties. I am therefore inclined to grant the Applicants an opportunity to file their Appeal out of time so that the same can be heard on merit.”

24. The second order sought is for stay of execution of the ex parte judgment pending the hearing and determination of the appeal.

25. The guiding provision is Order 42, Rule 6(2) of the Civil Procedure Rules which sets out the following conditions in determining an application for stay.

26. The first condition is that the application must have been made without unreasonable delay. I am satisfied that this condition was sufficiently addressed hereinabove.

27. Under the second condition, the applicant is required to show to this court’s satisfaction the substantial loss it would likely suffer if the order for stay is denied.

28. From the Motion and affidavits to back it, it is apparent that the applicant is anxious that the respondent, whose financial means are unknown, will not be able to refund the decretal sum if the same is paid to him and the appeal succeeds, further considering that the decretal amount is substantial in nature. The applicant is apprehensive that the appeal will consequently be rendered nugatory.

29. The applicant has also cited the case of Masisi Mwita v Damaris Wanjiku Njeri [2016] eKLRin which the court reasoned that:

“The corner stone of the jurisdiction of the court under Order 42 of the Civil Procedure Rules is that substantial loss would result to the applicant unless a stay of execution is granted… The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal.”

30. On his part, the respondent is of the view that no substantial loss has been demonstrated by the applicant.

31. In the case of National Industrial Credit Bank Ltd v Aquinas Francis Wasike & another [2006] eKLRit was held inter alia as follows:

“Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge…”

32. In the absence of anything to indicate or ascertain the respondent’s financial capacity therefore, I am satisfied that the applicant has reasonably demonstrated the manner in which it stands to suffer substantial loss.

33. In respect to the final condition on the provision of security for the due performance of such decree or order, the applicant on the one hand indicates its readiness and willingness to comply with any conditions that will be set by this court on the provision of security, which position was reiterated by their advocate during oral submissions. On the other hand, the respondent is of the view that should an order for a stay of execution be granted, then the applicant should be ordered to deposit the decretal sum in a joint interest earning account.

34. In the end, the Motion dated 6th August, 2020 is found to be Meritorious. The same is allowed giving rise to issuance of the following orders:

a) The applicant is granted leave of 14 days to file an appeal out of time.

b) There shall be a stay of execution of the ex parte judgment delivered on 11th March, 2019 on the condition that the applicant deposits the entire decretal sum in an interest earning account to be held in the joint names of the parties’ advocates/firm of advocates within 30 days from today, failing which the order for stay shall automatically lapse.

c) Costs of the application to abide the outcome of theappeal.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 11th day of December, 2020.

.............................

J. K. SERGON

JUDGE

In the presence of:

.................................. for the Appellant/Applicant

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