[2020] KEHC 648 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. E039 OF 2020

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

-VERSUS-

CHN (A female minor suing through her father and next friend HAN)....RESPONDENT

RULING

1. The subject matter of this ruling is the Notice of Motion dated6th 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. 9068 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 andthe 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 replyingaffidavit of advocate Nelson Kaburu Felix, to which Nelson Mwangi Nduki rejoined with her 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 thiscourt, the parties filed and exchanged written submissions.

5. I have considered the grounds laid out on the body of theMotion; 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 mymind to one issue which, though not raised in the applicant’s submissions, is crucial.

7. In brief, the applicant argues in its submissions that therespondent 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. On the part of the respondent, it is submitted that partial attachment was effected on 4th August, 2020 by way of public auction and that the applicant has not disproved the sale.

8. Upon perusal of contents of the further affidavit mentionedhereinabove, I note that Mr. Nelson Felix Kaburu essentially states that the application for a stay of execution has been overtaken by events since motor vehicle registration number KCG 505W which had been attached in execution of the decree has since been sold by public auction.

9. Upon my perusal of the annextures to the further affidavit, it isapparent that a sale purportedly took place arising out of the ex parte judgment and that the respondent’s advocate realized the sum of Kshs.1,221,728/ out of that sale, whereas the respondent submits that the total decretal sum is Kshs.3,295,573/.

10. Be that as it may, I concur with the sentiments of the applicantthat 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 and yet this issue was known or ought to have been within the knowledge of the respondent at all material times.

11. Further to the foregoing, it is apparent from the averments of theapplicant that the details relating to the purported sale are contested and it is not for this court to determine whether the sale is lawful or not at this stage.

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

13. It is evident that the Motion is seeking twin orders, the firstbeing for the enlargement of time to appeal and for leave to appeal out of time against the impugned ruling of 30th April, 2020.

14. Section 79G of the Civil Procedure Act sets the timelines forlodging 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.

15. Furthermore, under the provisions of Section 95 of the CivilProcedure 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.

16. On the first condition on length of delay, the respondent is of theview 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.

17. A perusal of a copy of the impugned ruling which was annexedto 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.

18. Concerning the reason(s) for the delay, Nelson Mwangi Nduki inhis 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.

19. In response, the learned advocate stated that the delay has notbeen sufficiently explained. Moreover, the respondent in his submissions argues that no valid reasons have been given to explain the prolonged delay.

20. Upon considering the above, I am alive to the fact that the globalCovid-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.

21. Concerning whether or not an arguable appeal exists, NelsonMwangi 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.

22. Upon my perusal of the grounds of appeal raised in the draftmemorandum 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.

23. Under the final principle on prejudice, Nelson Mwangi Ndukistates 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.

24. It is not in dispute that an ex parte judgment was entered infavour 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.

25. 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.”

26. The second order sought is for stay of execution of the ex partejudgment pending the hearing and determination of the appeal.

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

28. The first condition is that the application must have been madewithout unreasonable delay. I am satisfied that this condition was sufficiently addressed hereinabove.

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

30. From the Motion and affidavits to back it, it is apparent that theapplicant 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.

31. The applicant has also cited the case of Masisi Mwita vDamaris 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.”

32. On his part, the respondent is of the view that no substantialloss has been demonstrated by the applicant.

33. In the case of National Industrial Credit Bank Ltd v AquinasFrancis 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…”

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

35. In respect to the final condition on the provision of security forthe 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.

36. In the end, the Motion dated 6th August, 2020 is found to beMeritorious. 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 the appeal.

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