Tabitha Mbete Ngei v Collins Kipchumba Chongwo

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **THE CIVIL APPELLATE DIVISION** ***(Coram: A.C. Mrima, J.)*** **MISC. APPLICATION NO. E243 OF 2025** ***-between-*** **TABITHA MBETE NGEI ........................................................ APPLICANT** ***-versus-*** **COLLINS KIPCHUMBA CHONGWO ................................... RESPONDENT** **RULING** **Background:** 1. The dispute before this Court traces its origins to the trial Court in *Nairobi [Milimani] Chief Magistrates Civil Case No. E204 of 2024* [hereinafter referred to as ***‘the suit’***] involving a claim for damages following a road traffic accident. In its judgment, the trial Court apportioned liability at a ratio of 80%: 20% in favour of the *Colloins Kipchumba Chongwo*, Respondent herein, as against *Tabitha Mbete Ngei,* the Applicant herein. The Court subsequently awarded the Respondent a total sum of Kshs. 6,020,555/- encompassing general damages, special damages, and diminished earning capacity, which was reduced by the 20% contribution to a net award of Kshs. 4,816,444/-. The Applicant, aggrieved by the quantum awarded, sought to appeal the decision. **The Application:** 1. The Applicant moved this Court *vide* the Notice of Motion dated 8th October 2025. He sought the following orders: - 2. *Spent.* 3. *Spent.* 4. *THAT the Honourable Court be pleased to grant the Applicant/Proposed Appellant leave to file an Appeal out of time against the judgment of the Honourable Magistrate Becky Cheloti delivered on the 8th day of August 2025 in Milimani CMCC No. E204 OF 2024.* 5. *THAT there be a stay of execution of the aforementioned Judgment and Decree of the Subordinate Court in Milimani CMCC No. E204 of 2024, pending the hearing and determination of the intended Appeal.* 6. *THAT this Honourable Court be pleased to deem the annexed draft Memorandum of Appeal marked ‘SM4’ as duly filed and properly on record upon grant of leave to appeal out of time.* 7. *THAT the costs of this Application be provided for.* 8. The application was premised on the grounds that while the judgment was initially scheduled for delivery on 8th August 2025, a notice was posted indicating the Magistrate was bereaved, and a subsequent notice rescheduled the delivery to 10th September 2025. However, the judgment was uploaded on the Case Tracking System (CTS) on 15th September 2025 but backdated to 8th August 2025. The Applicant claimed that the backdating inadvertently caused the statutory period for filing the Memorandum of Appeal to lapse. 9. In the Supporting Affidavit sworn on 8th October 2025, *Sharon Mukania*, a Legal Officer at the Applicant’s insurers, deposed that the intended appeal is meritorious given the excessive award. She further asserted that the Applicant is willing to provide security for the due performance of the decree, and expressed apprehension that the Respondent, whose assets and income are unknown, will execute the judgment to the detriment of the Applicant if a stay is not granted. *The Submissions* 1. In her written submissions dated 3rd February 2026, the Applicant argued that the application satisfies the conditions for the grant of a stay of execution. It was her case that substantial loss is the cornerstone of granting stay orders and averred that the Respondent is a person of unknown means. 2. Relying on the decision in *Stanley Karanja Wainaina & another -vs- Ridon Anyangu Mutubwa* [2016] eKLR and the precedent of *Equity Bank Limited -vs- Taiga Adams Company Limited* (as cited in *Luxus Woods (K) Limited -vs- Patrick Amugune Kamadi* [2016] eKLR), the Applicant argued that the evidential burden shifted to the Respondent to demonstrate the financial capacity to refund the decretal sum should the appeal succeed. 3. The Applicant further maintained a willingness to provide security. To that end, she drew support from the case of *John Odongo -vs- Joyce Irungu Muhatia* [2015] eKLR to establish that readiness to abide by Court-imposed conditions satisfies the requirement for security. 4. Regarding the extension of time, the Applicant submitted that Section 79G of the Civil Procedure Act grants the Court discretion to admit an appeal out of time if sufficient cause is shown. Citing *Mbukoni Services Limited & another -vs- Mutinda Ruben Nzili & 2 others* [2021] eKLR, which quoted *First American Bank of Kenya Limited -vs- Gulab P. Shah & 2 others* [2002] 1 EA 65, the Applicant contended that the 23-day delay from the time the judgment was uploaded was not unreasonable and was sufficiently explained by the procedural anomalies on the CTS portal. 5. The Applicant prayed that the application be accordingly allowed. **The Respondent’s case:** 1. *Collins Kipchumba Chongwo* opposed the application through the Replying Affidavit of his Advocate, *Musili Mbiti*, sworn on 22nd October 2025. 2. The deponent asserted that the judgment was delivered in favour of the Respondent on 8th August 2025 and that the applicant was duly notified. The Respondent opposed the prayers for stay and for leave to appeal out of time, but deposed in the alternative that should the Court be inclined to grant the stay, it should be subjected to conditions. Specifically, the Respondent proposed that the Applicant be ordered to pay half of the decretal amount directly to the Respondent and deposit the remaining half in a joint interest-earning account in the names of both advocates within 21 days. *The Submissions* 1. In the written submissions dated 30th October 2025, the Respondent reiterated the alternative prayer for conditional stay. He submitted that he has endured severe bodily injuries, can no longer perform his duties as before, and requires the lawful compensation to cope with the resulting hardships. To that end, he drew support from the decision in *Edward Kamau & Another -vs- Hannah Mukui Gichuki* Misc No.78 of 2015 where it was observed that the Court must employ a balancing act between protecting the Applicant’s right of appeal from being rendered nugatory and safeguarding the Respondent’s right to enjoy a lawful judgment without being discriminated against due to unknown financial means. 2. Consequently, the Respondent prayed for the release of half the decretal sum. **Analysis and Determination** 1. Based on the pleadings and submissions, the following issues emerge for determination: - 1. *Whether the Applicant has established good and sufficient cause to be granted leave to file the appeal out of time.* 2. *Whether the application meets the threshold for the grant of an order for stay of execution pending the intended appeal.* 2. A consideration of the above issues now follows. **[a] Whether the Applicant has established good and sufficient cause to be granted leave to file the appeal out of time:** 1. *Section 79G* of the Civil Procedure Act sets the timelines within which an appeal may be lodged in the following terms; ***79G. Time for filing appeals from subordinate courts*** *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.* 1. The Supreme Court in ***Nick* *Salat -vs- Independent Electoral and Boundaries Commission & 7 others***(Application 16 of 2014) [2014] KESC 12 (KLR) remarked the significance of time in the following manner; *… Time is a crucial component in dispensation of justice, hence the maxim: Justice delayed is justice denied. It is a litigants’ legitimate expectation where they seek justice that the same will be dispensed timeously. Hence, the various constitutional and statutory provisions on time frames within which matters have to be heard and determined.* 1. Turning to the principles to be applied by a Court, extension of time is an equitable discretionary power. As such, a party cannot ask of it as a matter of right. In the ***Nick* *Salat*** *case [supra]* the Supreme Court observed as follows*;* *…. Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it.* 1. The Supreme Court further referred to the Court of Appeal decision in ***Paul Wanjohi Mathenge -vs- Duncan Gichane Mathenge***[2013] eKLR where the Court laid out the principles to be satisfied in the following terms; *…. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance* 1. Returning to the facts of the case, the Applicant demonstrated, as evidenced the annexed CTS notices that the judgment delivery was fraught with scheduling irregularities and was ultimately uploaded late and backdated. Such an administrative anomaly, without looking any further, establishes a credible and sufficient explanation for the lapse of the statutory window, which in any event was not protracted. 2. As to the question whether the grounds of appeal raise an arguable appeal, this Court will seek guidance from the Supreme Court in ***Dande & 3 others -vs- Director of Public Prosecutions & 2 others***(Petition 4 (E005) of 2022) [2022] KESC 23 (KLR)(19 May 2022) (Ruling).The learned Apex Court Judges discussed an arguable appeal as follows; *[13] Remembering that an arguable appeal is not one that must necessarily succeed, but is simply one that is deserving of the Court’s consideration; that what must be avoided is to render the success of the appeal, if successful, nugatory or an academic exercise; that the Court, in exercising its discretion, balances between the lower and the higher risks of injustice; and that no definitive conclusions ought to be made as that can only be in the appeal.* 1. From the annexed Memorandum of Appeal, the Applicant predominantly challenges the quantum for being inordinately high. Such is an issue deserving of hearing on appeal. **[b] Whether the application meets the threshold for the grant of an order for stay of execution pending the intended appeal:** 1. Where an Applicant seeks stay of execution, he must satisfy the tripartite conditions required by *Order 42 Rule 6(2)* and *(3)* of the Civil Procedure Rules. It provides thus: - 2. *No order for stay of execution shall be made under subrule (1) unless-* 3. *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; and* 4. *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.* 5. *Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.* 6. In Civil Application Nai 6 of 1979,***Butt -vs- Rent Restriction Tribunal***[1979] eKLR, the Court of Appeal while referring to the decision of Bret, LJ in *Wilson v Church* (No 2) 12 Ch D (1879) 454 at p 459 spoke to stay of execution in the following way; *… It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory, per Brett, LJ in****Wilson v Church****(No 2) 12 Ch D (1879) 454 at p 459. In the same case, Cotton LJ said at p 458:”* *…. I will state my opinion that when a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.* 1. An applicant must, therefore, demonstrate substantial loss, promptness of the application, and provision of security for the equitable discretionary power to be exercised favourably. I will assess each of the requirements seriatim. 2. *Substantial loss:* 3. The Applicant claimed that substantial loss would crystallize because the Respondent is a person of unknown means, making the recovery of the decretal sum improbable should the appeal succeed. 4. The Court of Appeal in ***National Industrial Credit Bank Ltd -vs- Aquinas Francis Wasike & Another****(*2006) eKLRarticulated the legal position as follows: - *…. Once an Applicant expresses a reasonable fact that a Respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the Respondent to show whatever resources he has since that is a matter which is peculiarly within his knowledge.* 1. The Respondent did not speak to his ability to make a refund of the decretal sum should the appeal be successful. He did not lay bare any financial resources or evidence of capacity to refund the Kshs. 4,816,444/- should the appeal succeed. Instead, he heavily relied on the balancing act to request the immediate release of half the decretal sum. Therefore, whereas paying out the decretal sum to a Respondent who fails to substantiate ability to make a refund may constitute substantial loss, that fear is always taken care of by the aspect of security. At times, payment of part of the decretal sum to a decree holder in an appeal which only challenges the quantum may not necessarily render the Applicant suffer loss, but goes a long way in balancing the parties’ interests. It all depends on the peculiar circumstances of a case. 1. *Security:* 2. The Applicant expressed clear readiness to provide security for the decree. Having addressed delay in the preceding issue it is this Court’s position that in order to balance the interests of both parties, protecting the substratum of the appeal while securing the decree holder’s eventual pay out, part payment to the Respondent and the provision of security for some amount is the most judicious approach. 3. This Court takes the above approach given that the appeal is only on quantum and on account of the injuries sustained by the Respondent. **Disposition:** 1. Taking all the foregoing factors into consideration, this Court makes the following final orders: - **[a] Leave is hereby granted to the Applicant to file an appeal against part of the judgment in *Nairobi [Milimani] Chief Magistrates Court Civil Case No. E204 of 2024* delivered on 8th August 2025.** **[b] The Applicant shall file and serve a Memorandum of Appeal in a substantive appeal file within 14 days of this Order.** **[c] There shall be a stay of execution of the Judgment and Decree in *Nairobi [Milimani] Chief Magistrates Court Civil Case No. E204 of 2024*, pending the hearing and determination of the appeal on the following conditions: -** * + 1. **That the Applicant shall pay the sum of Kshs. 500,000/= [Kenya Shillings Five Hundred Thousand Only] to the Respondent within 21 days of this Order.** 2. **That the Applicant will further deposit the sum of Kshs. 1,500,000/= [Kenya Shillings One Million Five Hundred Thousand Only] to COURT within 30 days of this Order. For clarity, the Court deposit shall be made in the substantive appeal file.** **[d] In the event of default in compliance with Orders [b] and/or [c] above, the order[s] for leave and/or stay of execution shall automatically be set-aside and discharged and the Notice of Motion dated 8th October 2025 dismissed with costs, with liberty to the Respondent to levy execution.** **[e] As the lapse that resulted to the instant application was on the part of the Court, parties shall bear their respective costs of the application.** **[e] This file is hereby marked as CLOSED.** Orders accordingly. **DELIVERED**, **DATED** and **SIGNED** at **NAIROBI** this **9th** day of **September, 2026.** **A. C. MRIMA** **JUDGE** **Ruling virtually delivered in the presence of:** **Ms Kareni** holding brief for Musili Mbiti,LearnedCounsel for the Respondent. **Ms Jan Mohamed,** Learned Counsel for the Applicant. **Michael/Amina** –Court Assistants.