[2023] KEHC 22919 (KLR)

Trufoods Limited Kenya & 2 others v Mwanthi (Miscellaneous Case 28 of 2023) [2023] KEHC 22919 (KLR) (2 October 2023) (Ruling)

Neutral citation: [2023] KEHC 22919 (KLR)

Republic of Kenya

In the High Court at Makueni

Miscellaneous Case 28 of 2023

TM Matheka, J

October 2, 2023

Between

Trufoods Limited Kenya

1st Applicant

Smart Autos Limited

2nd Applicant

Francis Muthoka David

3rd Applicant

and

Dennis Mwanthi alias Denis Mwathi

Respondent

Ruling

1. On February 28, 2023, the Hon LK Mwendwa RM delivered his judgment in Tawa MCCC 117 of 2022. The plaintiff had sued the defendant seeking General damages for pain and suffering, Special damages in Ksh 16, 405, costs and interest.

2. The record shows that there was consent on liability at 80:20 in favour of the plaintiff. On general damages the defendant proposed Ksh 300,000 and the plaintiff Ksh 1,100,000. The Court awarded Ksh 500,000, which less 20% came to Ksh 400,000/=

3. The record also shows that the counsel for each party was present when the Judgment was delivered and the court granted 30 days stay of execution.

4. On April 27, 2023, the defendants filed an application seeking inter alia leave to file an appeal out of time, and stay of execution pending the hearing of the intended appeal

5. The grounds for the application are that the there was a long and indefinite delay for the typed judgment leaving counsel for the applicant with insufficient details upon which to inform the next course of action meaning to file the appeal. That by the time the same was received the time for filing the appeal had expired.

6. The application is supported by the affidavit sworn by Ruth Mbalelo, an officer designated in the legal department of APA Insurance Company Limited the Insurer of the defendant’s m/v registration no Kxx 97xx (the accident motor vehicle.

7. The application is opposed vide the affidavit of Dennis Mwikya Mwanthi the plaintiff/respondent. It is his position that the Judgment was delivered and a typed copy supplied the same day, he annexes his copy. That from the application the only amount is dispute in the appeal is the sum of Ksh 116, 405, which if paid he is able to refund should the appeal be in favour of the defendant. He annexes his payslip for the month of April 2023 showing that he earns the sum of Ksh 50,000 per month.

8. Parties filed written submissions through their respective counsel.

9. I have carefully considered the submissions, the affidavits, the judgment of the trial court and the only issue is whether the application has merit.

10. The application is brought under sections 3, 3A and 75(1)(h) of the Civil Procedure Act and order 42 rule 1, and rule 6, order 43 rule 1 order 50 rule 6, order 51 rules 1,3, and 4 of the Civil Procedure Rules 2010.

11. The applicant has framed the issues to be determined aa whether substantial loss may result, whether application has been brought without reasonable delay, and whether there is need for costs as they are set out under Order 42 rule 6 of the CPR. It is argued that the applicants will suffer substantial loss and reliance made onJames Wangalwa & Another vs Agnes Naliaka Cheseto [2012] eKLR. Therein the court observed that the fact that the execution process has been put in motion is not by itself substantial loss, because the execution process is a lawful process. That applicant must establish other factors to demonstrate that the effect of the execution will be a state of affairs that will irreparably affect or negate the very essence of the core of the applicant as the successful party in the appeal. The applicant merely states that they have demonstrated this.

12. The applicants also submit that they have demonstrated that they are willing to deposit security for costs. They cite Mwaura Karuga t/a Limit Enterprises vs Kenya Bus Services Limited & 4 others [2015] eKLRon the proposition that security must be for the purpose of ensuring the performance of the decree which might become binding upon the applicant. And on the purpose of stay to ensure the appeal is not rendered nugatory, they have cited inter alia RWW vs EKW [2019] eKLR and Absalom Dova vs Tarbo Transporters [2013] eKLRon the purpose of stay of execution.

13. On whether there was unreasonable delay it is argued that the delay was not unreasonable and in any vent it was a mistake of counsel that ought not to be visited on the client. Belinda Mura & Others vs Amos Wainaina [1978] eKLR, Philip Chemwolo &Another vs Augustine Kubede [1982-1988] KLR 10

14. They refer me toCharles Nyamwega vs Asha Njeri Kimata & Another [2017] eKLRwhere three months was considered not unreasonable.

15. For the respondent it is submitted that the applicant has not net the threshold of the requirements of the law and procedure. That they have not established sufficient cause, substantial loss, delay and security.

16. On delay it is argued that the applicants have not even accounted for the delay. There is no explanation as to when they received the judgement.

17. On substantial loss, that the applicants were ready to pay Ksh 300,000. The respondent got 400,000. The amount the applicant could claim to amount to substantial loss in the event the orders are not granted is just about Ksh 100,000. The respondent has demonstrated the ability to repay that amount should he lose on appeal and that evidence is not contradicted. It is argued that the court ought not to deprive a successful litigant of the fruits of his judgement. SeeGeorge Oraro vs KTN IRC 151 of 1992.

18. With respect to security it is argued that none has been provided

19. Further that the application is incompetent because the supporting affidavit is in violation of Order 19 rule 3 of the Civil Procedure Rules see HCCA Kitui No 11 of 2021Mwengi Mwanzia & Kipandini Enterprises vs Kimanthi Muvea.

20. That the deponent is not a party to the suit or the appeal and therefore cannot depone to the facts related to the suit. In addition, that the affidavit is sworn in violation of the principle of subrogation as the insurer has not demonstrated that they have paid the claim so as to take over the suit from the applicant. For this the respondent has citedSecuricor Guards (K) Ltd vs Saleen &Another [2019] eKLR andPMM Private Safaris vs Kevin Injatia [2006] where the court said '… the insurer is not a party to the proceedings …hence the affidavit is sworn by a stranger to the proceedings ...'

21. I have carefully considered the application before me, the submissions and the authorities. The guiding principles re settled as under order 42 rule 6.

22. With respect to the prayer to file an appeal out of time, there was no submission by the applicants on that issue. On the issue of the stay pending appeal;

23. With respect to substantive loss it is evident that the applicants have not established how the payment of Ksh 116000 will cause them to suffer substantial loss. The respondent has demonstrated his capacity to pay back the money and that evidence is not contradicted.

24. The Judgment was read in the presence of all [arties and no explanation has been given for the delay in filing the appeal. The applicants have not explained when they received the judgment. The period of delay is not standard. What determines unreasonable delay is the explanation given by the applicant.

25. It is correct that the affidavit in support is sworn by a person who could be described as a stranger to the suit but the respondent did not point out any specific fact that was not in the knowledge and information of the deponent, unlike in the authority that was cited. My perusal of the affidavit brought back the view that the deponent stuck to the facts within her knowledge. The circumstances of this case did not appear to me to call on the principle of subrogation.

26. I have perused the Memorandum of appeal and the Judgment. The appeal is bout quantum of damages and considering what was awarded vis a vis what was proposed I am persuaded that the appeal would not be rendered nugatory if the application is not granted.

27. In the circumstances I find that the applicant has not established sufficient cause to warrant the orders sought.

28. In the circumstances I find that the application is not merited and it is dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2NDDAY OF OCTOBER 2023……………………………………………………………MUMBUA T MATHEKAJUDGEMs Mwangangi for the applicantMwangangi Nzisa &AssociatesAdvocates for the Applicantsinfo@nzisamwangangi.comMakau for respondentAnnie W. Thoronjo & Co AdvocatesAdvocates for the Respondent