[2022] KEHC 415 (KLR)

Waweru v Nzinga (Miscellaneous Application E229 of 2021) [2022] KEHC 415 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 415 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Application E229 of 2021

MW Muigai, J

May 12, 2022

Between

Lawrence Njoroge Waweru

Applicant

and

Nzimbi Nzinga

Respondent

Ruling

Notice of Motion 1. By a Notice of Motion dated 25th November, 2021, the Applicant seek the following orders:-1. Thatthis application be certified urgent, service be dispensed with thereof and the same be heard ex parte in the first instance and an interim order be given in terms of prayer 2. 2.Thatthe Hon. Court be pleased to order stay of execution of the Judgment delivered on 7th October, 2021 by Hon. Onkwani (MS) (PM) in Mavoko CMCC No.549 of 2020-Nzimbi Nzinga v Lawrence Njoroge Maweri pending the hearing and determination of this Application.3. Thatthe Hon. Court be pleased to grant leave to the Applicant to file an appeal out of time against the Judgment delivered on 7th October, 2021 by Hon. Onkwani (MS) (PM) in Mavoko CMCC No.549 of 2020-Nzimbi Nzinga v Lawrence Njoroge Maweri.4. THAT upon granting prayer 3 above, this Hon. Court be pleased to order stay of execution of the decree in Mavoko CMCC No.549 of 2020-Nzimbi Nzinga v Lawrence Njoroge Maweri pending the hearing and determination of the Intended Appeal. The intended Appellant is willing to abide by any condition that shall be imposed by this Honourable Court.5. THAT the attached Memorandum of Appeal be deemed duly filed within time upon payment of the requisite fees.6. THAT the costs of this application be in the cause.

2. The Motion is supported by the affidavit of the Applicant’s advocate, M.K Itonga sworn on 25th November, 2021. According to the advocate, the Trial Court in its judgment delivered on 7th October, 2021 found the Defendant 100% liable and awarded the Plaintiff general damages of Kshs. 500,000/- and special damages of Kshs. 3,573/-.

3. The advocate averred that their firm upon being instructed by Kenya Orient Insurance, the insurer of the Applicant, to defend the Applicant, they communicated the terms of the judgment to the insurer but the insurer delayed in giving them instructions to file the appeal and it was until 22nd November, 2021 when they got instructions but the prescribed time within which to file an appeal had lapsed by two weeks.

4. According to the advocate a cursory look at the judgment, the Trial Court award on liability and general damages are unreasonable and unjustified hence the need to appeal against the award to meet the ends of justice. The advocate averred that the failure to file the appeal within the time was inadvertent and due to excusable human error. According to the advocate, the application was brought timeously and without undue delay and will not occasion any prejudice against the Respondent if granted as prayed. Again that no prejudice will be occasioned since the insurer is willing to deposit security that the court shall order for the performance of the decree pending the outcome of the appeal.

Replying Affidavit 5. In opposition to the application, the Respondent swore a replying affidavit on 14th December, 2021. He averred that through a letter dated 8th October, 2021, the Applicant requested his advocates for a tabulation of the costs of the suit and the costs were duly tabulated and forwarded to the Applicant through the letter dated 9th October, 2021. Again through a letter dated 25th October, 2021 by the Applicant’s advocates, the decretal sum inclusive of the costs of the suit was agreed at Kshs. 636,258 and through a letter dated 8th November, 2021, the Applicants indicated that they were proceeding to call for payment and that they would revert with the payment advise. That based on the Applicant’s undertaking and/or show of willingness to settle the decretal sum the Respondent has been patiently waiting to enjoy the fruits of the judgment and his advocate has given the Applicant adequate time to settle the decretal sum.

6. He averred that on 29th November, 2021 through a letter dated the same date, his advocate informed the Applicant’s advocate that execution process would commence because the Applicant had failed to settle the decretal sum as agreed. According to the Respondent, it is after the Applicant was in receipt of the letter that the Applicant rushed to court seeking stay of execution orders through the application herein. To the Respondent, this is an afterthought and the application has been filed in bad faith to further delay the settlement of the decretal sum in the judgment sought to be appealed against.

7. According to the Respondent, the Applicant has not given good reasons for the delay to file the appeal within the prescribed time. He averred that the application has been brought in bad faith since all along he caused his advocate to believe that he was willing to settle the decretal sum. According to the Respondent, it is not enough for the Applicant to state that he is willing to deposit security for the performance of the decree, he must give a good reason for the delay in filing the appeal.

8. The Respondent urged the court to dismiss the application to allow him enjoy the fruits of the judgment but in the event the court is inclined to allow the application, the applicant be given strict timelines within which to deposit the security and file the intended appeal.

Applicant’s Submissions 9. In support of the application, it is submitted that the decision whether or not to extend time for filing an appeal is essentially discretionary. Reliance was placed on the case of Leo Sila Mutiso v Rose Hellen Wangari Mawangi Nai CA No 225 of 1997(Unreported) cited in the case of Emmanuel Ngade Nyokavs. Kidheka Mutisya Ngata CA Mombasa Civil Application No 17 of 2016 where the factors to consider whether or not to grant leave were outlined as; The length of the delay; the reason for the delay; chances of appeal succeeding if the application is granted; and the degree of prejudice to the Respondent if the application is granted.

10. According to the Applicant, the application has been filed without undue delay and the delay of two week has been explained. It is submitted that the grounds of appeal in the draft Memorandum of Appeal are meritorious and the Respondent will not be prejudiced in any way. That it would be prejudicial and unfair to the Applicant if the door of justice are shut because of excusable human errors which led to the delay in filing the appeal on time.

11. It is submitted that the Respondent has not mentioned in his replying affidavit that he will suffer prejudice in the event the application is allowed. According to the Applicant, the Respondent will still have an opportunity to be heard on appeal. According to the Applicant sufficient reasons have been established for granting the orders sought in the application. The Applicant urged the court to grant the prayers sought in the application.

Respondent’s Submissions 12. On 31st March, 2022, counsel for the Respondent intimated to court that the Respondent was relying on his replying affidavit sworn on 14th December, 2021.

Determination 13. I have considered the application, affidavits in support and in opposition to, submissions and the authorities relied upon.

Leave To Appeal Out of Time 14. Section 79G of the Civil Procedure Act provides that:“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 above provision allows an appeal to be filed out of time only when the party show good and sufficient cause why the appeal was not filed within 30 days.2. It follows therefore as stated byE. O. O'kubasu JA. in Stanley Kaiyongi Mwenda vs. Cyprian Kubai[2000]eKLR that this Court in dealing with the issue of application for extension of time within which to file and serve Notice of Appeal and Record of Appeal cited the case of Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi - Civil Application No. NAI 255 of 1997 (unreported) where the Court of Appeal stated inter alia:-“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary…”

17. What is good and sufficient cause? In Wachira Karani v Bildad Wachira [2016] eKLR Mativo J. held that:“Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause...”

18. In Daphene Parry v Murray Alexander Carson [1963] EA 546 the Court had the following to say:-“that though the provision for extension of time requiring “sufficient reason” should receive a liberal construction, so as to advance substantial justice, when no negligence, nor inaction, nor want of bona fides, is imputed to the appellant, its interpretation must be in accordance with judicial principles. If the appellant has a good case on the merits but is out of time and has no valid excuse for the delay, the court must guard itself against the danger of being led away by sympathy and the appeal should be dismissed as time-barred, even at the risk of injustice and hardship to the appellant.”

19. The principles to be considered in exercising the discretion whether or not to enlarge time are well set out in First American Bank of Kenya Ltd v Gulab P Shah & 2 others Nairobi (Milimani) HCCC NO 2255 of 2000 [2002] 1 EA 65 where the court stated the principles to be:-(i).the explanation if any for the delay;(ii).the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice;(iii).Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant.”

20. In the same vein, the Supreme Court of Kenya in the case of County Executive of Kisumu v County Government of Kisumu and 8 others [2017] eKLR held:-“[23]It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. Further, this Court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salat’s case to which all the parties herein have relied upon. The Court delineated the following as:“the under-lying principles that a Court should consider in exercise of such discretion:1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;5. Whether there will be any prejudice suffered by the respondents if the extension is granted6. Whether the application has been brought without undue delay; and7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

21. The Court in Thuita Mwangi v Kenya Airways Ltd [2003] eKLR, explained that the list of factors to consider was not exhaustive as follows :“The list of factors a court would take into account in deciding whether or not to grant an extension of time is not exhaustive. Rule 4 of the Court of Appeal Rules (Cap. 9 sub-leg) gives the single judge unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed so long as the factor is relevant to the issue being considered.”

22. According to the Applicant, the impugned judgment of Hon. H. Onkwani (PM) was delivered on 7th October, 2021 and a stay of 45 days was granted by the Trial Magistrate. The 30 days period to file the appeal lapsed on 7th November, 2021 when the Applicant had not filed an appeal against the judgment. On behalf of the Applicant, it is submitted that its insurer delayed to give instruction to the advocate. According to the Applicant’s advocates, the insurer instructions to file the appeal reached them on 22nd November, 2021.

23. The Court of Appeal in Kenya Ports Authority v Silas Obengele Civil Application No Nai 297 of 2004 [2006] 2 KLR 112 stated that:“Whereas it is now settled that whenever there is a delay, even for one day, there must be some explanation for it otherwise an extension may not be granted where there was material before the single judge from which he could and did conclude that the delay or the periods of delay…the full bench will not interfere”

24. The court’s view is that the Applicant’s advocate explanation has been given in a casual manner since no correspondences have been attached to the application herein to show when the instructions of representation were given to the advocate by the insurer or when the instruction to file the appeal were issued despite stating the date. The insurer representative has not sworn an affidavit to explain the delay to give the advocate instructions to file the appeal.

25. Nevertheless in my view, the Applicant’s advocate has sufficiently explained the delay was occasioned by the Applicant’s insurance. A delay of 24 days from the date of the judgment is not inordinate. The instructions to file the appeal out of time were issued on the last day within the period of the 45 days stay granted by the Trial Magistrate. In Concord Insurance Company Limited vs. Susan Nyambura Hinga Civil Application No. Nai 251 of 2002 it was held that a delay for 28 days is not inordinate for purposes of an application for extension of time to appeal.

26. Apaloo JA (as he then was) in Phillip Chemwolo & another v Augustine Kubede [1982-88] KLR 103 at 1040 stated thus:-“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case heard on merit”.

27. In Mbukoni Services Limited & another v Mutinda Reuben Nzili & 2 others [2021] eKLR, Odunga J. stated that:-“27. The broad approach under the current constitutional dispensation is that unless there is fraud or intention to overreach, an error or default that can be put right by payment of costs ought not to be a ground for nullifying legal proceedings unless the conduct of the party in default can be said to be high handed, oppressive, insulting or contumelious. The court, as is often said, exists for the purpose of deciding the rights of the parties and not imposing discipline.”

28. In this case there is no evidence that the Applicant or his insurance conduct amounted to fraud or intention to overreach. In his replying affidavit, the court notes that Respondent has note averred that he cannot be adequately compensation by way of costs in the circumstances.

29. The prejudice that the Respondent will suffer has not been demonstrated if the court allowed the Draft Memorandum of appeal be filed out of time. The court’s view is that procedurally, the Respondent must be accorded the opportunity to challenge the appeal in court. The assertions by the Respondent that through the email correspondences, the Applicant did show willingness to settle amount is not a ground to deny the Applicant leave to appeal out of time since the insurance was dissatisfied with the judgment hence it proceeded to give instructions to the Applicant’s advocate on 22nd November, 2021 to file the appeal.

30. I shall allow the Applicant leave to file the attached draft Memorandum of appeal out of time and the same shall be deemed as duly filed upon payment of the requisite filing fees.

Stay of Execution 31. Regarding the stay of execution of the judgment, Order 42 Rules 6 of the Civil Procedure Rules, 2010provides that:(2)No order for stay of execution shall be made under sub rule (1) unless—(a)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(b)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.

Substantial Loss 32. The Applicant’s advocate contends that if stay of execution of the judgment is not granted, the Applicant will suffer irreparable loss and damage since the Respondent will commence execution at any time. Vide a letter dated 29th November, 2021, the Respondent’s advocate had written to the Applicant’s advocates that if payment was not received within 3 days from the date of the letter, the process of execution would ensue.

33. In James Wangalwa & another v Agnes Naliaka Cheseto in Misc Appl No 42 of 2011 [2002] eKLR Gikonyo J. stated that;“No doubt, in law the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.”

34. In Tropical Commodities Suppliers Ltd and others v International Credit Bank Limited (in liquidation) (2004) EA LR 331,defined substantial loss in the sense of Order 42 rule 6 as follows:-“…Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small, that is of real worth or value as distinguished from a loss without value or a loss that is merely nominal…”

35. In Masisi Mwita v Damaris Wanjiku Njeri [2016] eKLR, Mativo J. relied on the case of Equity Bank Ltd v Taiga Adams Company Ltd, [2006] eKLR to explain the onus of the Applicant where the court stated a follows: -“…The only way of showing or establishing substantial loss is by showing that if the decretal sum is paid to the respondent—that is execution is carried out-in the event the appeal succeeds, the respondent would not be in a position to pay-reimburse- as/he is a person of no means. Here, no such allegation is established by the appellant.”

36. The court notes that the Applicant’s advocate has not averred in his replying affidavit whether he is apprehensive that the Respondent will not be able to repay back the decretal sum in the event that the appeal is successful.

37. The court find that there is no basis to find that the Applicant would suffer substantial since it has not been demonstrated that the Applicant or its insurer will suffer substantial loss in the event stay orders are not granted. The grounds fails.

Without Unreasonable Delay 38. The application herein was filed 1st December, 2021, 11 days late after the 45 days stay of execution lapsed on 22nd November, 2021. In my view the delay is reasonable.

Security 39. The Applicant’s advocate averred that the Applicant’s insurer is ready and willing to deposit the security. According to the Respondent, the averment in respect of the provision of security for the due performance of the decree is not enough as the Applicant must give a good reason for the delay in filing of the appeal. The delay has been sufficiently explained by the Applicant’s advocates.

40. The Court in Focin Motorcycle Co Limited v Ann Wambui Wangui & another [2018] eKLR, stated that:-“Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.”

41. In Tabro Transporters Ltd v Absalom Dova Lumbasi [2012] eKLR, the Court held that:“The discretionary relief of stay of execution pending appeal is designed on the basis that no one would be worse off by virtue of an order of the court; as such order does not introduce any disadvantage, but administers the justice that the case deserves. This is in recognition that both parties have rights; the Appellant to his appeal which includes the prospects that the appeal will not be rendered nugatory; and the decree holder to the decree which includes full benefits under the decree. The court in balancing the two competing rights focuses on their reconciliation which is not a question of discrimination.”

42. The Applicant’s insurer is willing to provide security for the due performance of the decree herein. The Respondent has not controverted the sufficiency of the provision of security but has urged the court to give strict timelines within which to deposit the security and file the intended appeal.

Arguable Appeal 43. As to what constitutes an arguable appeal, the Court of Appeal in Nairobi Women’s Hospital v Purity Kemunto [2018] eKLR:-“To say that an appeal is arguable is another way of saying that it is not frivolous and that it raises a bona fide issue deserving full consideration by the Court. Even one bona fide issue will satisfy the requirement, for the law does not look for a multiplicity of arguable issues.”

44. According to the draft Memorandum of Appeal, the appeal is against both liability and quantum. The Applicant’s contends that the entire object of the application herein will be defeated and rendered academic should the Respondent proceed to execute the judgment.

45. The Court, in RWW v EKW [2019] eKLR, addressed its mind to the purpose of a stay of execution order pending appeal, in the following words:“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.”

46. The Court’s view is that the issue of the contested liability and award of inordinately high quantum of damages are arguable issues that warrant to have a day in court for determination on merit.

47. Having found that the delay of 24 days was not unreasonable and the explanation given by the Applicant’s advocate, the court finds that there is sufficient reason for the court to exercise its discretion in favour of the Applicant.

Dispositiona.The Applicant to file the Memorandum of appeal within 14 days and serve the Respondent.b.There will be stay of execution of the judgment and decree in Mavoko CMCC No.549 of 2020-Nzimbi Nzinga v Lawrence Njoroge Maweri pending the hearing of the said intended appeal on condition that the Applicant deposits within 90 days the entire decretal sum in a joint interest earning account in the names of the advocates for the respective parties at a bank of their choice. In default this application shall be deemed to have been dismissed with costs to the Respondent.c.Costs of the application herein shall abide in the appeal

48. It so ordered.

RULING DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 12TH DAY OF MAY, 2022. M.W. MUIGAIJUDGE