1. What is before this court is the applicants’ Notice of Motion application dated 24th August 2024 brought under the provisions of Section 3A and 75 of the Civil Procedure Act and Section 3 Rule 2 of the High Court Practice and Procedure Rules wherein they were seeking the following orders;
1) Spent
2) That the Honourable Court he pleased to extend time for lodging of a Memorandum of Appeal against the Judgment of the Hon. Peter Areri delivered on 27th June, 2024 in Eldoret CMCC E593 OF 2022; Evans Kipkurui Kipsang -Vs- Abraham Kiptum Rutto & Eldoret Shuttle Sacco.
3) That the draft Memorandum of Appeal dated 18th July, 2024 be deemed as properly filed.
4) Spent
5) That pending the hearing and determination of the appeal herein, there be a stay of execution of the judgment made on 25th June, 2024 in Eldoret CMCC E593 OF 2022 and of all subsequent orders entered against the appellant/applicant emanating therefrom.
6) That pending the hearing and determination of the intended appeal the Applicant herein do avail security by way of Bank Guarantee from Family Bank for the whole judgment sum of Kshs. 1,001,195/-
7) That this Honourable Court be pleased to set aside, cancel and/or recall warrants of attachment dated 13th August, 2024 and Proclamation dated 14th August, 2024 of Motor Vehicles Registration number KBN 686N, KCJ 764V, KCJ 948V and KDA 211L and any other movable property since they were issued irregularly and un-procedurally.
8) That the costs of the present application be borne by both parties.
2. It is premised on the grounds on the face of it and the averments contained in the Supporting Affidavit sworn by Anne Kirigo who is an Advocate of the High Court of Kenya practising as such in the firm of the Advocates for the Applicants.
3. In the affidavit, the deponent stated that Appellant/Applicant being aggrieved by the judgement in Eldoret CMCC E593 OF 2022 delivered on 25th June to the sum of Ks. 1,001,195/- together with costs and interest against the applicants prepared the memorandum of appeal dated 18/07/2024 within the timelines required and had it assessed and assigned assessment Reference Number E3HJ3Z4M
4. That this being a road traffic claim with the instructing client being Directline Assurance, was faced with challenges whereby their accounts were frozen by the Insurance Regulatory Authority which payment of court fees impossible. As a result, the 30 days stay of execution granted, as well as the time for lodging the appeal has lapsed and further, that the Respondents have moved to execute the Judgment.
5. That unless stay of execution is granted, and an enlargement of time allowed for the appeal to be filed, the appeal shall be rendered nugatory and the Applicant will suffer irreparable loss and damage. The deponent averred that the delay in filing the application was not inordinate and that the appeal raises triable issues. Further, that as the decree is a substantial amount, the deponent is apprehensive that the applicants may not be able to recover the same from the respondent if the appeal succeeds. He urged that he is willing to furnish security in form of a bank guarantee and prayed the court to allow the application as prayed.
Replying affidavit
6. The Respondent opposed the application vide a Replying Affidavit dated 05/09/2024 sworn by Evans Kipkurui Kipsang. The deponent averred that the application is an afterthought, lacks merit and thus ought to be dismissed with costs at first instance. He acknowledged that that judgment was delivered in Eldoret CMCC E593 of 2022 on 25/06/2024 in his favour and the court awarded him General Damages of Kshs. 1,001,195/=.
7. Further, that the trial court granted the applicants 30 days Stay of Execution on the same date it delivered its judgment. During the pendency of this stay, the applicants did not lodge their Memorandum of Appeal, contrary to provisions of the Civil Procedure Rules. He urged that the applicants have not attached any evidence to show that their accounts were closed and thus they were unable to pay the filing fees for the appeal. Further, that as far as the case is concerned, Direct line Assurance has been operating business and there has been no moratorium or notice of receivership put in place to indicate that it is no longer in business.
8. The deponent stated that he instructed his advocates to apply for execution of decree in ELDORET CMCC E593 OF 2022 on 21/08/2024, close to four weeks after Stay of Execution lapsed on 25th July 2024. That if the Applicants were serious about filing their appeal, they would have already lodged the same during the intervening period after stay had lapsed and before the respondent applied to court for execution and as a successful party he is entitled to enjoy the fruits of his judgement.
9. He pointed out that the deponent has not attached any evidence to prove that the proclaimed vehicle is registered in his name and further that it would be unfair to allow the Applicants to lodge their Appeal out of time. That the delay in filing this application for extension of time is inordinate and the Applicants have not given reasonable explanations on delaying to file their appeal by 2 months. He prayed the court dismiss the application with costs.
Hearing of the application
10. The parties filed submissions on the application. The applicants filed submissions dated 28/10/2024 through the firm of Messrs. Kimondo Gachoka & Company advocates whereas the Respondent filed submissions dated 19/11/2024 through the firm of Ngala C & Company Advocates.
Applicants’ submissions
11. Learned counsel for the applicants submitted that the time stipulated for filing an Appeal from the lower court is provided under section 79 G of the Civil Procedure Act which is within 30 days after the delivery of the Decree and or order. He cited the case of Leo Sila Mutiso vs Rose Hellen Wangari Mwangi- Civil Application No Nai. 255 of 1997 (unreported) to buttress this submission. Counsel urged that the Judgement in this suit was delivered on 27/06/2024 and the intended Memorandum of Appeal is dated 18/07/2024, within the timelines required.
12. The assessment was done on the same day thus the intention was there, in terms of filing and proceeding with the Appeal. While conceding that the application was filed on 27/08/2024 two months after the Judgment was delivered Counsel submitted that the timeline for paying and having the appeal properly on record ran out before the appellants could pay for the appeal. He stated that this was brought about by the management strife in the applicant's insurance company which caused delay in release of funds for purposes of filing court documents and complying with court orders in terms of any fees. He cited the finding in Silas Kanyolu Mwatha v Josephine Kavive Tames (2021) eKLR, where the court addressed the issue of inordinate delay and allowed an extension of time to file an appeal out of time for a delay of six months. Relying on said decision, counsel urged that the delay of four months in the present suit is not inordinate.
13. It is the applicants’ case that the intended appeal is meritorious with very high chances of success and the delay in filing the appeal is occasioned by circumstances beyond the applicant’s control. Counsel urged that the applicants will be denied the right to be heard since the intended appeal raises triable issues and thus they will suffer irreparable loss if the instant application is not allowed.
14. On substantial loss, counsel relied on the case of James Wangalwa & Another vs Agnes Naliaka Cheseto (2012) eKLR and Century Oil Trading Company Limited vs. Kenya Shell Limited Nairobi [2008] eKL. He urged that if the orders prayed for are not granted, the Respondent will proceed to conclude the process of execution of the decree in his favour and the applicants shall be forced to settle the decretal sum despite the intended appeal having very high chances of success. He urged that the Respondent's financial standing is unknown and the judgment being of a substantial amount, he is unlikely to refund the decretal sum. Further, that in order to protect the substratum of the intended appeal, it would be in the interests of justice that an order of stay of execution.
15. Counsel cited the case of National Industrial Credit Bank Limited vs Aquinas Francis Wasike & Anor (UR) C.A. 238/2005 urging that as was held in the said case, the respondent has not placed evidence before the court to demonstrate that he would is a person of means and would be in a position to refund the decretal sum should the intended appeal succeed. On this premise, counsel urged the court to allow stay of execution and that the appellant be allowed to issue security.
16. Counsel cited Order 21 Rule 8 of the Civil Procedure Rules, urging that the Respondent ought to have served them with the Decree prior to executing in order for both parties to be in agreement on what the Decree entails. That it is only prudent that the applicants should have been aware of the Decree seeing that the applicants’ property was at risk of being proclaimed and sold off. In this regard, counsel cited the case of Gatumuta v Kenya Power & Lighting Co Ltd (Civil Appeal 19 of 2017) 120231KEHC 249 (KLR) (25 January 2023) (Ruling) and urged that it has been demonstrated that the Decree used to extract the warrants of attachment and proclamation was not done procedurally therefore, the court should deem it so and allow the application as prayed.
Respondents’ submissions
17. Learned counsel for the respondent cited Section 79G of the Civil Procedure Act and urged that an applicant seeking enlargement of time to file an appeal must demonstrate sufficient cause in doing so. He cited the case of Daphne Parry vs. Murray Alexander Carson (1963) EA 546 on the definition of sufficient cause and further submitted that there are other principles to be considered in exercising discretion on whether or not to enlarge time. He stated that the principles are;
• The explanation of the delay, if any
• The merits of the contemplated action, whether the matter is an arguable one deserving a day in court or whether its frivolous
• Whether or not the Respondent can adequately be compensated in costs for any prejudice he may suffer as a result of favourable exercise of discretion in favour of the Applicant
18. Counsel reiterated the contents of the Replying Affidavit as regards the factual basis of the case and urged that the applicants lodged this application only after being served with a Proclamation Notice, citing difficulty in paying filing fees for appeal due to financial constraints. He submitted that if the applicants were experiencing financial constraints as they alleged, they ought to have lodged this application immediately the lower court order for stay of execution lapsed. The mere fact that they waited to lodge this application after being served with Proclamation Notices is an indication of a possible indifference and frivolous conduct. He urged that the delay is unjustifiable and thus the court should disallow their application. He cited the case of Salkas Contractors Limited vs Kenya Petroleum Refineries Limited (2004) KECA 121 KLR where the Court of Appeal pronounced itself on matters dismissal.
19. Counsel submitted that the Warrants of Attachment dated 21/08/2024 were issued procedurally after filing the provided application for execution and payment of the requisite fees and therefore prayer 7 of the application should be dismissed forthwith. Further, that if the applicants were dissatisfied with how the same was issued, they were at liberty to move the trial court to lift them, which avenue they have not pursued. He urged that this also applies to the Bill of Costs which was taxed by the trial court prior to drawing of decree.
20. Counsel cited the case of Cell Tours & Travel Limited v Charles Maina Muriithi & Real Insurance Limited (2021) KEHC 6658 KLR where the Court enlarged time to file an appeal for the applicant who within 21 days of delivery of judgment, wrote to court requesting for typed proceedings. He pointed out that the applicants herein have not lodged any letter to the trial court to request for typed proceedings as proof of their seriousness in intending to appeal. Further, that the applicants invoked provisions of Order 42 Rule 6 of the Civil Procedure Rules in their application, yet this rule is only invoked where there exists an appeal, which is not the case herein. He urged the court to dismiss their application, citing the holding in Unicool International Limited v Arnold Kabogo Ndegwa (2022) KEHC 14299 where Kasango J (as she then was) specifically pronounced herself on this issue as follows;
"As correctly stated in the respondent's submission stay of execution pending hearing and determination of an appeal is brought under Order 42 Rule 6 of the Civil Procedure Rules. The provisions of that Rule does not envisage stay of execution being granted pending a yet to be filed appeal. Stay of execution is granted pending the hearing and determination of an existing appeal. In this case, there is no appeal in existence and therefore, the prayer for stay of execution must and does fail."
21. Counsel submitted that the interim order of Stay issued by this court on 23/10/2024 has disadvantaged the Respondent who was in the process of executing decree. He stated that in the event the court is inclined to allow the applicants' application, he proposed the applicants pay the trial court costs in full together with half the decretal sum, while the remainder half be deposited in a joint interest earning account pending hearing and determination of their appeal.
22. Having addressed my mind to the Application, the facts deposed in the Affidavits in support and in opposition to the same as well as the submissions by both Counsel, it is my considered opinion the following issues arise for determination;
1) Whether the orders for extension of time should issue
2) Whether the orders for stay of execution pending appeal should issue
3) Whether a bank guarantee can serve the purpose of security
23. The law on all the issues herein raised are as I will set out below in terms of the relevant Statutory provisions as well as Case Law but even then, the court notes that contrary to the submission s by Counsel for the Respondent on the provision of the law under which the Applicant has moved the court, the court notes that the applicant has come under the provisions of Section 79G of the Civil Procedure Code and not under Order 42 of the Civil Procedure Rules as submitted. The said Section 79G of the Civil Procedure Act provides as follows:
“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 a good and sufficient cause for not filing the appeal in time.” [Emphasis added].
24. The Supreme Court settled the principles that guide in the exercise of discretion to extend time in the case of Nicholas Kiptoo Korir Arap Salat v IEBC [2014] eKLR as follows:
i. Extension of time is not a right to a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
ii. A party who seeks extension of time has the burden of laying basis to the satisfaction of the court.
iii. Whether the court should exercise its discretion to extend time is a consideration to be made on a case-by-case basis.
iv. Where there is reasonable reason for the delay, the delay should be explained to the satisfaction of the court.
v. Whether there will be any prejudice suffered by the Respondent if extension is granted.
vi. Whether the application has been brought without undue delay.
vii. Whether in certain cases public interest should be a consideration for extension of time.
25. In this case, I note from the deposition of the Applicant that their intended Memorandum of Appeal as deposed is indeed dated 18/07/2024 and the impugned judgement was delivered on 25th June 2024. This fact has not been rebutted by the Respondents. The court takes into account the fact that this period is well within the 30 days stay window. Counsel then proceeded to give reason why the said Appeal was not filed on time and I have addressed my mind to the same as well as the rebuttal by the Respondents. The Respondents do not deny that the Applicant’s insurers as deposed was Directline Insurance.
26. The court further takes note of the fact that save to state that no evidence of the freezing of the insurers accounts was provided, the Respondent did not strongly refute this deposition. In this regard then, the court is persuaded on a balance of probabilities that the possibility that the insurers accounts were indeed frozen as deposed does exist. This coupled with the fact that the Memorandum of Appeal was prepared well within the 30 days stay period lends credence to the reasons given by the Applicant of their inability by the Applicant to file their Appeal was filed on time as explained. I therefore find the reason given to be satisfactory.
27. The next issue is on whether the Memorandum of Appeal should be deemed as duly filed The issue was discussed in the Court of Appeal in the case of Charles Karanja Kiiru vs. Charles Githinji Muigwa [2017] eKLR. Therein the learned justices posed the following question:
“Having expressed ourselves as herein above the other issues that falls for consideration is whether the appeal filed out of time on 24th October 2014 could be deemed as being properly on record. There is a plethora of authorities from the High court which interpret the proviso to Section 79G of the Civil Procedure Act to mean that an appeal filed out of time can be admitted as being properly on record once extension of time is granted. Emukule J. in the Gerald M’Limbine vs. Joseph Kangangi [2009] eKLR stated that:
“My understanding of the proviso to Section 79G is that an applicant seeking “an appeal to be admitted out of time” must in effect file such an appeal and at the same time seek leave of court to have an appeal admitted out of the statutory period of time. The provision does not mean that an intending appellant first seeks the court’s permission to admit a non-existent appeal out of the stipulated period
28. The court as already herein stated, is satisfied that the Memorandum of Appeal and in time too and the same is annexed to this Application seeking to enlarge time. In this regard I am satisfied that the Applicant has duly complied with the provisions of Section 79G under which they have moved the court. In the case of RWW v EKW [2019] eKLR, the court considered the purpose of an order of stay of execution pending appeal and thereafter proceeded to render itself thus;
“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. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
29. Further in noting that the Applicants have undertaken to provide a Bank Guarantee for the entire decretal sum, the court associates itself fully with the reasoning in the case of Arun C. Sharma vs. Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR, where the purpose of security was clearly enunciated as follows;
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”
30. And on whether a bank guarantee is sufficient security the decision of the Court of Appeal in Nduhiu Gitahi v Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 expressed itself as follows is instructive;
“The process of giving security is one, which arises constantly. So long as the opposite party can be adequately protected, it is right and proper that security should be given in a way, which is least disadvantageous to the party giving the security. It may take many forms. Bank guarantee and payment into court are but two of them. So long as it is adequate, then the form of it is a matter, which is immaterial….”
31. The Respondent herein submits that in the Court deems it fit to allow the Application, then it should be on condition that half the decretal amount as well as the costs on the lower court be paid out to the Respondent and the remaining half be deposited in a joint interest earning account in the names of both Advocates. Half the decretal amount minus costs is Ks. 500,595/=. This is by no means a small amount of money in these difficult economic times and even as I agree that the Respondent should not be denied the enjoyment of the fruits of his judgement, I am persuaded by the decision of the Court of Appeal in the case of National Industrial Credit Bank Limited vs Aquinas Francis Wasike & Anor (UR) C.A. 238/2005 that the Respondent needed to demonstrate to court that in the event the Appeal is successful, he is a person of means and will therefore be able to refund this amount to the Applicant. The Respondent has not at all done this.
32. In light of my findings and conclusions as herein above, I am satisfied that the Application by the Applicant has merit and the same is allowed as follows;
1. That the time for the lodging of a Memorandum of Appeal against the Judgment of the Hon. Peter Areri delivered on 27th June, 2024 in Eldoret CMCC E593 OF 2022; Evans Kipkurui Kipsang -Vs- Abraham Kiptum Rutto & Eldoret Shuttle Sacco is now hereby extended and the draft Memorandum of Appeal dated 18th July, 2024 be deemed as properly filed.
2. That pending the hearing and determination of the appeal herein, there be a stay of execution of the judgment made on 25th June, 2024 in Eldoret CMCC E593 OF 2022 and of all subsequent orders entered against the appellant/applicant emanating therefrom.
3. That pending the hearing and determination of the intended appeal the Applicant herein do avail security by way of Bank Guarantee from Family Bank for the whole judgment sum of Kshs. 1,001,195/- within the next 30 days from the date of this Ruling.
4. That the warrants of attachment dated 13th August, 2024 and Proclamation dated 14th August, 2024 of Motor Vehicles Registration numbers KBN 686N, KCJ 764V, KCJ 948V and KDA 211L and any other movable property, are now hereby recalled cancelled and set aside.
5. That Applicants are to bear the costs the costs of the application.
Read Dated and Signed at ITEN on 2nd April 2025
1) Spent
2) That the Honourable Court he pleased to extend time for lodging of a Memorandum of Appeal against the Judgment of the Hon. Peter Areri delivered on 27th June, 2024 in Eldoret CMCC E593 OF 2022; Evans Kipkurui Kipsang -Vs- Abraham Kiptum Rutto & Eldoret Shuttle Sacco.
3) That the draft Memorandum of Appeal dated 18th July, 2024 be deemed as properly filed.
4) Spent
5) That pending the hearing and determination of the appeal herein, there be a stay of execution of the judgment made on 25th June, 2024 in Eldoret CMCC E593 OF 2022 and of all subsequent orders entered against the appellant/applicant emanating therefrom.
6) That pending the hearing and determination of the intended appeal the Applicant herein do avail security by way of Bank Guarantee from Family Bank for the whole judgment sum of Kshs. 1,001,195/-
7) That this Honourable Court be pleased to set aside, cancel and/or recall warrants of attachment dated 13th August, 2024 and Proclamation dated 14th August, 2024 of Motor Vehicles Registration number KBN 686N, KCJ 764V, KCJ 948V and KDA 211L and any other movable property since they were issued irregularly and un-procedurally.
8) That the costs of the present application be borne by both parties.
2. It is premised on the grounds on the face of it and the averments contained in the Supporting Affidavit sworn by Anne Kirigo who is an Advocate of the High Court of Kenya practising as such in the firm of the Advocates for the Applicants.
3. In the affidavit, the deponent stated that Appellant/Applicant being aggrieved by the judgement in Eldoret CMCC E593 OF 2022 delivered on 25th June to the sum of Ks. 1,001,195/- together with costs and interest against the applicants prepared the memorandum of appeal dated 18/07/2024 within the timelines required and had it assessed and assigned assessment Reference Number E3HJ3Z4M
4. That this being a road traffic claim with the instructing client being Directline Assurance, was faced with challenges whereby their accounts were frozen by the Insurance Regulatory Authority which payment of court fees impossible. As a result, the 30 days stay of execution granted, as well as the time for lodging the appeal has lapsed and further, that the Respondents have moved to execute the Judgment.
5. That unless stay of execution is granted, and an enlargement of time allowed for the appeal to be filed, the appeal shall be rendered nugatory and the Applicant will suffer irreparable loss and damage. The deponent averred that the delay in filing the application was not inordinate and that the appeal raises triable issues. Further, that as the decree is a substantial amount, the deponent is apprehensive that the applicants may not be able to recover the same from the respondent if the appeal succeeds. He urged that he is willing to furnish security in form of a bank guarantee and prayed the court to allow the application as prayed.
Replying affidavit
6. The Respondent opposed the application vide a Replying Affidavit dated 05/09/2024 sworn by Evans Kipkurui Kipsang. The deponent averred that the application is an afterthought, lacks merit and thus ought to be dismissed with costs at first instance. He acknowledged that that judgment was delivered in Eldoret CMCC E593 of 2022 on 25/06/2024 in his favour and the court awarded him General Damages of Kshs. 1,001,195/=.
7. Further, that the trial court granted the applicants 30 days Stay of Execution on the same date it delivered its judgment. During the pendency of this stay, the applicants did not lodge their Memorandum of Appeal, contrary to provisions of the Civil Procedure Rules. He urged that the applicants have not attached any evidence to show that their accounts were closed and thus they were unable to pay the filing fees for the appeal. Further, that as far as the case is concerned, Direct line Assurance has been operating business and there has been no moratorium or notice of receivership put in place to indicate that it is no longer in business.
8. The deponent stated that he instructed his advocates to apply for execution of decree in ELDORET CMCC E593 OF 2022 on 21/08/2024, close to four weeks after Stay of Execution lapsed on 25th July 2024. That if the Applicants were serious about filing their appeal, they would have already lodged the same during the intervening period after stay had lapsed and before the respondent applied to court for execution and as a successful party he is entitled to enjoy the fruits of his judgement.
9. He pointed out that the deponent has not attached any evidence to prove that the proclaimed vehicle is registered in his name and further that it would be unfair to allow the Applicants to lodge their Appeal out of time. That the delay in filing this application for extension of time is inordinate and the Applicants have not given reasonable explanations on delaying to file their appeal by 2 months. He prayed the court dismiss the application with costs.
Hearing of the application
10. The parties filed submissions on the application. The applicants filed submissions dated 28/10/2024 through the firm of Messrs. Kimondo Gachoka & Company advocates whereas the Respondent filed submissions dated 19/11/2024 through the firm of Ngala C & Company Advocates.
Applicants’ submissions
11. Learned counsel for the applicants submitted that the time stipulated for filing an Appeal from the lower court is provided under section 79 G of the Civil Procedure Act which is within 30 days after the delivery of the Decree and or order. He cited the case of Leo Sila Mutiso vs Rose Hellen Wangari Mwangi- Civil Application No Nai. 255 of 1997 (unreported) to buttress this submission. Counsel urged that the Judgement in this suit was delivered on 27/06/2024 and the intended Memorandum of Appeal is dated 18/07/2024, within the timelines required.
12. The assessment was done on the same day thus the intention was there, in terms of filing and proceeding with the Appeal. While conceding that the application was filed on 27/08/2024 two months after the Judgment was delivered Counsel submitted that the timeline for paying and having the appeal properly on record ran out before the appellants could pay for the appeal. He stated that this was brought about by the management strife in the applicant's insurance company which caused delay in release of funds for purposes of filing court documents and complying with court orders in terms of any fees. He cited the finding in Silas Kanyolu Mwatha v Josephine Kavive Tames (2021) eKLR, where the court addressed the issue of inordinate delay and allowed an extension of time to file an appeal out of time for a delay of six months. Relying on said decision, counsel urged that the delay of four months in the present suit is not inordinate.
13. It is the applicants’ case that the intended appeal is meritorious with very high chances of success and the delay in filing the appeal is occasioned by circumstances beyond the applicant’s control. Counsel urged that the applicants will be denied the right to be heard since the intended appeal raises triable issues and thus they will suffer irreparable loss if the instant application is not allowed.
14. On substantial loss, counsel relied on the case of James Wangalwa & Another vs Agnes Naliaka Cheseto (2012) eKLR and Century Oil Trading Company Limited vs. Kenya Shell Limited Nairobi [2008] eKL. He urged that if the orders prayed for are not granted, the Respondent will proceed to conclude the process of execution of the decree in his favour and the applicants shall be forced to settle the decretal sum despite the intended appeal having very high chances of success. He urged that the Respondent's financial standing is unknown and the judgment being of a substantial amount, he is unlikely to refund the decretal sum. Further, that in order to protect the substratum of the intended appeal, it would be in the interests of justice that an order of stay of execution.
15. Counsel cited the case of National Industrial Credit Bank Limited vs Aquinas Francis Wasike & Anor (UR) C.A. 238/2005 urging that as was held in the said case, the respondent has not placed evidence before the court to demonstrate that he would is a person of means and would be in a position to refund the decretal sum should the intended appeal succeed. On this premise, counsel urged the court to allow stay of execution and that the appellant be allowed to issue security.
16. Counsel cited Order 21 Rule 8 of the Civil Procedure Rules, urging that the Respondent ought to have served them with the Decree prior to executing in order for both parties to be in agreement on what the Decree entails. That it is only prudent that the applicants should have been aware of the Decree seeing that the applicants’ property was at risk of being proclaimed and sold off. In this regard, counsel cited the case of Gatumuta v Kenya Power & Lighting Co Ltd (Civil Appeal 19 of 2017) 120231KEHC 249 (KLR) (25 January 2023) (Ruling) and urged that it has been demonstrated that the Decree used to extract the warrants of attachment and proclamation was not done procedurally therefore, the court should deem it so and allow the application as prayed.
Respondents’ submissions
17. Learned counsel for the respondent cited Section 79G of the Civil Procedure Act and urged that an applicant seeking enlargement of time to file an appeal must demonstrate sufficient cause in doing so. He cited the case of Daphne Parry vs. Murray Alexander Carson (1963) EA 546 on the definition of sufficient cause and further submitted that there are other principles to be considered in exercising discretion on whether or not to enlarge time. He stated that the principles are;
• The explanation of the delay, if any
• The merits of the contemplated action, whether the matter is an arguable one deserving a day in court or whether its frivolous
• Whether or not the Respondent can adequately be compensated in costs for any prejudice he may suffer as a result of favourable exercise of discretion in favour of the Applicant
18. Counsel reiterated the contents of the Replying Affidavit as regards the factual basis of the case and urged that the applicants lodged this application only after being served with a Proclamation Notice, citing difficulty in paying filing fees for appeal due to financial constraints. He submitted that if the applicants were experiencing financial constraints as they alleged, they ought to have lodged this application immediately the lower court order for stay of execution lapsed. The mere fact that they waited to lodge this application after being served with Proclamation Notices is an indication of a possible indifference and frivolous conduct. He urged that the delay is unjustifiable and thus the court should disallow their application. He cited the case of Salkas Contractors Limited vs Kenya Petroleum Refineries Limited (2004) KECA 121 KLR where the Court of Appeal pronounced itself on matters dismissal.
19. Counsel submitted that the Warrants of Attachment dated 21/08/2024 were issued procedurally after filing the provided application for execution and payment of the requisite fees and therefore prayer 7 of the application should be dismissed forthwith. Further, that if the applicants were dissatisfied with how the same was issued, they were at liberty to move the trial court to lift them, which avenue they have not pursued. He urged that this also applies to the Bill of Costs which was taxed by the trial court prior to drawing of decree.
20. Counsel cited the case of Cell Tours & Travel Limited v Charles Maina Muriithi & Real Insurance Limited (2021) KEHC 6658 KLR where the Court enlarged time to file an appeal for the applicant who within 21 days of delivery of judgment, wrote to court requesting for typed proceedings. He pointed out that the applicants herein have not lodged any letter to the trial court to request for typed proceedings as proof of their seriousness in intending to appeal. Further, that the applicants invoked provisions of Order 42 Rule 6 of the Civil Procedure Rules in their application, yet this rule is only invoked where there exists an appeal, which is not the case herein. He urged the court to dismiss their application, citing the holding in Unicool International Limited v Arnold Kabogo Ndegwa (2022) KEHC 14299 where Kasango J (as she then was) specifically pronounced herself on this issue as follows;
"As correctly stated in the respondent's submission stay of execution pending hearing and determination of an appeal is brought under Order 42 Rule 6 of the Civil Procedure Rules. The provisions of that Rule does not envisage stay of execution being granted pending a yet to be filed appeal. Stay of execution is granted pending the hearing and determination of an existing appeal. In this case, there is no appeal in existence and therefore, the prayer for stay of execution must and does fail."
21. Counsel submitted that the interim order of Stay issued by this court on 23/10/2024 has disadvantaged the Respondent who was in the process of executing decree. He stated that in the event the court is inclined to allow the applicants' application, he proposed the applicants pay the trial court costs in full together with half the decretal sum, while the remainder half be deposited in a joint interest earning account pending hearing and determination of their appeal.
22. Having addressed my mind to the Application, the facts deposed in the Affidavits in support and in opposition to the same as well as the submissions by both Counsel, it is my considered opinion the following issues arise for determination;
1) Whether the orders for extension of time should issue
2) Whether the orders for stay of execution pending appeal should issue
3) Whether a bank guarantee can serve the purpose of security
23. The law on all the issues herein raised are as I will set out below in terms of the relevant Statutory provisions as well as Case Law but even then, the court notes that contrary to the submission s by Counsel for the Respondent on the provision of the law under which the Applicant has moved the court, the court notes that the applicant has come under the provisions of Section 79G of the Civil Procedure Code and not under Order 42 of the Civil Procedure Rules as submitted. The said Section 79G of the Civil Procedure Act provides as follows:
“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 a good and sufficient cause for not filing the appeal in time.” [Emphasis added].
24. The Supreme Court settled the principles that guide in the exercise of discretion to extend time in the case of Nicholas Kiptoo Korir Arap Salat v IEBC [2014] eKLR as follows:
i. Extension of time is not a right to a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.
ii. A party who seeks extension of time has the burden of laying basis to the satisfaction of the court.
iii. Whether the court should exercise its discretion to extend time is a consideration to be made on a case-by-case basis.
iv. Where there is reasonable reason for the delay, the delay should be explained to the satisfaction of the court.
v. Whether there will be any prejudice suffered by the Respondent if extension is granted.
vi. Whether the application has been brought without undue delay.
vii. Whether in certain cases public interest should be a consideration for extension of time.
25. In this case, I note from the deposition of the Applicant that their intended Memorandum of Appeal as deposed is indeed dated 18/07/2024 and the impugned judgement was delivered on 25th June 2024. This fact has not been rebutted by the Respondents. The court takes into account the fact that this period is well within the 30 days stay window. Counsel then proceeded to give reason why the said Appeal was not filed on time and I have addressed my mind to the same as well as the rebuttal by the Respondents. The Respondents do not deny that the Applicant’s insurers as deposed was Directline Insurance.
26. The court further takes note of the fact that save to state that no evidence of the freezing of the insurers accounts was provided, the Respondent did not strongly refute this deposition. In this regard then, the court is persuaded on a balance of probabilities that the possibility that the insurers accounts were indeed frozen as deposed does exist. This coupled with the fact that the Memorandum of Appeal was prepared well within the 30 days stay period lends credence to the reasons given by the Applicant of their inability by the Applicant to file their Appeal was filed on time as explained. I therefore find the reason given to be satisfactory.
27. The next issue is on whether the Memorandum of Appeal should be deemed as duly filed The issue was discussed in the Court of Appeal in the case of Charles Karanja Kiiru vs. Charles Githinji Muigwa [2017] eKLR. Therein the learned justices posed the following question:
“Having expressed ourselves as herein above the other issues that falls for consideration is whether the appeal filed out of time on 24th October 2014 could be deemed as being properly on record. There is a plethora of authorities from the High court which interpret the proviso to Section 79G of the Civil Procedure Act to mean that an appeal filed out of time can be admitted as being properly on record once extension of time is granted. Emukule J. in the Gerald M’Limbine vs. Joseph Kangangi [2009] eKLR stated that:
“My understanding of the proviso to Section 79G is that an applicant seeking “an appeal to be admitted out of time” must in effect file such an appeal and at the same time seek leave of court to have an appeal admitted out of the statutory period of time. The provision does not mean that an intending appellant first seeks the court’s permission to admit a non-existent appeal out of the stipulated period
28. The court as already herein stated, is satisfied that the Memorandum of Appeal and in time too and the same is annexed to this Application seeking to enlarge time. In this regard I am satisfied that the Applicant has duly complied with the provisions of Section 79G under which they have moved the court. In the case of RWW v EKW [2019] eKLR, the court considered the purpose of an order of stay of execution pending appeal and thereafter proceeded to render itself thus;
“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. Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
29. Further in noting that the Applicants have undertaken to provide a Bank Guarantee for the entire decretal sum, the court associates itself fully with the reasoning in the case of Arun C. Sharma vs. Ashana Raikundalia t/a Rairundalia & Co. Advocates & 2 others [2014] eKLR, where the purpose of security was clearly enunciated as follows;
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor…. Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose.”
30. And on whether a bank guarantee is sufficient security the decision of the Court of Appeal in Nduhiu Gitahi v Warugongo [1988] KLR 621; 1 KAR 100; [1988-92] 2 KAR 100 expressed itself as follows is instructive;
“The process of giving security is one, which arises constantly. So long as the opposite party can be adequately protected, it is right and proper that security should be given in a way, which is least disadvantageous to the party giving the security. It may take many forms. Bank guarantee and payment into court are but two of them. So long as it is adequate, then the form of it is a matter, which is immaterial….”
31. The Respondent herein submits that in the Court deems it fit to allow the Application, then it should be on condition that half the decretal amount as well as the costs on the lower court be paid out to the Respondent and the remaining half be deposited in a joint interest earning account in the names of both Advocates. Half the decretal amount minus costs is Ks. 500,595/=. This is by no means a small amount of money in these difficult economic times and even as I agree that the Respondent should not be denied the enjoyment of the fruits of his judgement, I am persuaded by the decision of the Court of Appeal in the case of National Industrial Credit Bank Limited vs Aquinas Francis Wasike & Anor (UR) C.A. 238/2005 that the Respondent needed to demonstrate to court that in the event the Appeal is successful, he is a person of means and will therefore be able to refund this amount to the Applicant. The Respondent has not at all done this.
32. In light of my findings and conclusions as herein above, I am satisfied that the Application by the Applicant has merit and the same is allowed as follows;
1. That the time for the lodging of a Memorandum of Appeal against the Judgment of the Hon. Peter Areri delivered on 27th June, 2024 in Eldoret CMCC E593 OF 2022; Evans Kipkurui Kipsang -Vs- Abraham Kiptum Rutto & Eldoret Shuttle Sacco is now hereby extended and the draft Memorandum of Appeal dated 18th July, 2024 be deemed as properly filed.
2. That pending the hearing and determination of the appeal herein, there be a stay of execution of the judgment made on 25th June, 2024 in Eldoret CMCC E593 OF 2022 and of all subsequent orders entered against the appellant/applicant emanating therefrom.
3. That pending the hearing and determination of the intended appeal the Applicant herein do avail security by way of Bank Guarantee from Family Bank for the whole judgment sum of Kshs. 1,001,195/- within the next 30 days from the date of this Ruling.
4. That the warrants of attachment dated 13th August, 2024 and Proclamation dated 14th August, 2024 of Motor Vehicles Registration numbers KBN 686N, KCJ 764V, KCJ 948V and KDA 211L and any other movable property, are now hereby recalled cancelled and set aside.
5. That Applicants are to bear the costs the costs of the application.
Read Dated and Signed at ITEN on 2nd April 2025