1. Associated Motors Ltd the applicant/intended appellant herein, has filed before this Court an application by way of Notice of Motion dated 26/8/2024 seeking for two substantive orders being:
a. enlargement of time to file its appeal out of time against the judgment in Kwale MCCC No. 47 of 2025 delivered on 24/7/2024 and
b. stay of execution of the said judgment pending the hearing and determination of the intended appeal.
2. The application is brought under Order 51, Order 42 Rules 6(1), Order 50(6) of the Civil Procedure Rules, section 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya and all other enabling provisions of the law. The grounds in support of the application are laid on the face therefore and expounded in the supporting affidavit sworn on 26/8/2024 by Monica Oweya, advocate.
3. The applicant avers that being dissatisfied with the judgment of the trial court, it intends to appeal the said decision and that the 30 days stay of execution granted by the trial court has since elapsed.
4. The advocate for the applicant deposes that the time within which it is allowed by statute to appeal the judgment dated 24/7/2024 had lapsed on 24/8/2024 just the day its counsel was given instructions to file the appeal. The reasons are that the parting of ways between the applicant and its former advocate was not cordial thereby leading to delay in filing the intended appeal. Secondly, that while attempting to file the appeal, she experienced technical challenges with her electronic filing account (e-filing system) and in the process her account was suspended. She has annexed various correspondences/notices she had with the judiciary over the same from 23/8/2024 as well as the acknowledgment from the judiciary that at the time there was a system downtime. The issue was only resolved on 26/8/2024 when she was able to file the present application.
5. The applicant is thus apprehensive that if stay of execution is not granted the respondent may commence the process of execution leading the applicant to suffer irreparable loss and prejudice.
6. The application is opposed by the 1st and 2nd respondents through Mwaita Hamisi Mbeta’s replying affidavit sworn on 16/9/2024. She deposes that the application is without merit, there was inordinate delay in filing it and it is only meant to delay her from enjoying the fruits of the judgment. That the continued withholding of the decretal sum will cause great prejudice to the deceased’s children who have been suffering since the accident occurred. That the applicant has not demonstrated that the appeal is arguable with a probability of success as the award by the court is reasonable. That there is no evidence that the appeal will be rendered nugatory.
7. She further deposes that it has not been demonstrated that they will not be able to refund the amount awarded in the judgment if it is paid to them. She together with her co-administrator of the deceased’s estate make an average of KShs 2,000/= per day from their various businesses to sustain themselves.
8. The court was notified and Ms Esanjee learned counsel for the 3rd and 4th respondents confirmed to this court that they had filed a different appeal before the Mombasa High Court HCCA No. E250 of 2024. Ms Essanjee informed this court that they were going to seek to have that matter transferred to Kwale High Court for hearing and determination.
9. The court directed that the application be heard by way of written submissions. Learned counsels for the applicant and the 1st and 2nd respondents file their respective submissions.
10. Learned counsel for the applicant submitted that the applicant had met all the conditions for extension of time and stay pending appeal and supported the submissions with various authorities.
11. Learned counsel for the respondent on her part submits that the application is incompetent and does not lie and has traversed each of the grounds set down by the applicant in support of its application. She has also filed authorities to support her submissions.
12. I have considered the Notice of Motion application the grounds in support thereof, the supporting affidavit as well as the replying affidavit and the submissions by learned counsels together with the authorities cited. The issues for determination are whether the application has merit, what orders the court should issue and who bears the costs of the application.
13. The first prayer is for extension of time to file an appeal. The applicant has annexed a draft memorandum of appeal dated 23/8/2024. It challenges the trial court’s judgment on both liability and quantum. Therefore, the submission by learned counsel that there is no competent appeal in place is not entirely true because the court is able to see the grounds upon which the intended appeal is grounded in the draft memorandum of appeal.
14. The other preliminary issue raised by learned counsel for the 1st and 2nd respondents is that the affidavit in support of the application was sworn by the advocate for the applicants and not an officer of the applicant. On that issue, I will consider the same as an issue of procedural technicality which should not fetter the court’s authority to do substantial justice in the case. Learned counsel for the applicant had the information on what caused the delay in filing the appeal. I do not find the issue of substantial loss to be contentious, such as only the applicant’s officers could competently depose on it. There are various decisions of superior courts to the effect that substantial loss does not mean a calculable loss whether great or small that is of real worth or value as distinguished from minimal loss. It is something that can be readily appreciated whether the applicant will suffer substantial loss or not. The decretal sum herein is about KShs 2,500,000/= and this by any means cannot be considered minimal.
15. Section 79G of the Civil Procedure Act under which the prayer for extension of time is based 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.”
16. The applicant seeks time to file the appeal out of time. It delayed to file the memorandum of appeal by a whisker. It has not stated that the delay in filing the appeal was occasioned by time taken by the court to prepare and deliver to it a copy of the decree. But it deposes that it was out of a system challenge which the judiciary has acknowledged that there was a system downtime. So that in as much as that consideration does not apply in the applicant’s case it is a fact that the system downtime contributed to the delay. Under the proviso to section 79G CPA, the appeal may still 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. In applying this section, courts have held that the court has a wide discretion to extend time to file an appeal but the discretion must not be exercised capriciously but judiciously and based on sound judgment and consideration of the totality of the facts and law. In the case of Thuita Mwangi v Kenya Airways Ltd [2003] eKLR the Court of Appeal held setting out the principles for the court to consider as follows: -
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly) the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted.”
17. The Supreme Court explained further in the case of Nicholas Kiptoo Arap Korir Salat v IEBC (2014) eKLR Sup Ct Application No 16 of 2014 that:
“…extension of time is not a right of a party; a party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court. Of paramount importance, the reason for delay must be explained to the satisfaction of the Court. Further, the application for extension must be brought without undue delay and it must be demonstrated if the respondent will not suffer prejudice if extension is granted”.
18. It follows that a party seeking extension of time must first lay a basis for the delay and the reason(s) offered must be to the satisfaction of the court. This is what constitutes good and sufficient cause as required by the law. In the present application, the applicant has offered what I consider to be an explanation that is to the satisfaction of the court. A delay of three days, between Friday and Monday cannot be held to be inordinate.
19. I find that there is good and sufficient explanation for the delay in filing the appeal upon which the court can and hereby exercises its discretion to extend time to file the appeal.
20. The next issue is whether or not the court should grant a stay of execution.
21. Stay of execution pending appeal is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (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.”
22. From the foregoing provision of the law, the three conditions to be fulfilled for an order of stay pending appeal to issue are;
a. that substantial loss may result to the applicant unless the order is made.
b. the application has been made without unreasonable delay.
c. security as the court orders for the due performance.
23. These principles are enunciated in the case of Butt v Rent Restriction Tribunal [1982] KLR 417where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.
24. The High Court’s jurisdiction to grant a stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules is circumscribed by the three conditions of, being satisfied that the application has been made without unreasonable delay, satisfaction that substantial loss may occur if the order is not granted and the furnishing of security for the due performance of the court’s orders. (See the case of Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365).
25. It has also been held that the court, in exercising its discretion, should also opt for the lower rather than the higher risk of injustice and finally the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, which the courts are now enjoined to give effect to. (See Machira T/A Machira & Co Advocates vs. East African Standard (No 2) [2002] KLR 63.
26. This court has found that the applicant is entitled to extension of time to file the intended appeal out of time. The applicant’s intended memorandum of appeal was filed on 26/8/2024 together with the present application and is now on record. Three days cannot be considered as unreasonable delay in filing an appeal.
27. On the issue of substantial loss, the applicant deposes that it stands to suffer prejudice if execution is levied. Since there is no precise definition of what amounts to substantial loss, I believe it is for this court to determine on the facts placed before it. No doubt if a party who is exercising a right of appeal pays out a sum of money in satisfaction of a decree that is under challenge, whatever the amount, and afterwards, if it succeeds on appeal, is made to start following the same to get it back through no other means than filing suit, it causes inconvenience and substantial loss. This loss is not just monetary alone but even the time as well as the inconvenience of following up the same. It is one thing for the respondents to depose that they have the means and another for them to tender back the money at once if and when required to. I am aware that the 1st and 2nd respondents have a decree in their favour and they are entitled to enjoy the fruit thereof. But the applicant also has their right to appeal. Balancing the two competing interests in this case, I find that the loss that would be suffered by the applicant would be substantial if the stay order is not granted.
28. However, this issue is evened out on the next requirement to be satisfied for stay of execution to issue that “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.” The applicant herein has not given any security. However, it is upon the court to ensure that it is offered before the stay order is granted. Therefore, the order of stay of execution can be granted on condition that sufficient security for the due performance of the decree is taken by the court.
29. Consequently, I find that the application herein has merit and in order not to render the intended appeal nugatory, the application is granted in the following terms:
a. The applicant is granted leave to file appeal out of time and to do so within the next 14 days.
b. Stay of execution of the judgment dated 24/7/2024 and ensuing decree in Kwale MCC No 47 of 2021 is granted pending hearing and determination of the intended appeal herein on condition that the applicant deposits into court the balance of the decretal sum within 21 days from today, the first half having been deposited at the ex parte stage.
c. Failure by the applicant to abide by the conditions hereinabove the application dated 26/8/2024 will be deemed to have been dismissed and the respondents will be at liberty to execute.
d. Costs of the application will abide the Appeal
30. Orders accordingly.
31. Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 22nd November 2024.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for applicant.
N/A for the respondent.
Johnson: Court Assistant.
a. enlargement of time to file its appeal out of time against the judgment in Kwale MCCC No. 47 of 2025 delivered on 24/7/2024 and
b. stay of execution of the said judgment pending the hearing and determination of the intended appeal.
2. The application is brought under Order 51, Order 42 Rules 6(1), Order 50(6) of the Civil Procedure Rules, section 1A, 1B and 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya and all other enabling provisions of the law. The grounds in support of the application are laid on the face therefore and expounded in the supporting affidavit sworn on 26/8/2024 by Monica Oweya, advocate.
3. The applicant avers that being dissatisfied with the judgment of the trial court, it intends to appeal the said decision and that the 30 days stay of execution granted by the trial court has since elapsed.
4. The advocate for the applicant deposes that the time within which it is allowed by statute to appeal the judgment dated 24/7/2024 had lapsed on 24/8/2024 just the day its counsel was given instructions to file the appeal. The reasons are that the parting of ways between the applicant and its former advocate was not cordial thereby leading to delay in filing the intended appeal. Secondly, that while attempting to file the appeal, she experienced technical challenges with her electronic filing account (e-filing system) and in the process her account was suspended. She has annexed various correspondences/notices she had with the judiciary over the same from 23/8/2024 as well as the acknowledgment from the judiciary that at the time there was a system downtime. The issue was only resolved on 26/8/2024 when she was able to file the present application.
5. The applicant is thus apprehensive that if stay of execution is not granted the respondent may commence the process of execution leading the applicant to suffer irreparable loss and prejudice.
6. The application is opposed by the 1st and 2nd respondents through Mwaita Hamisi Mbeta’s replying affidavit sworn on 16/9/2024. She deposes that the application is without merit, there was inordinate delay in filing it and it is only meant to delay her from enjoying the fruits of the judgment. That the continued withholding of the decretal sum will cause great prejudice to the deceased’s children who have been suffering since the accident occurred. That the applicant has not demonstrated that the appeal is arguable with a probability of success as the award by the court is reasonable. That there is no evidence that the appeal will be rendered nugatory.
7. She further deposes that it has not been demonstrated that they will not be able to refund the amount awarded in the judgment if it is paid to them. She together with her co-administrator of the deceased’s estate make an average of KShs 2,000/= per day from their various businesses to sustain themselves.
8. The court was notified and Ms Esanjee learned counsel for the 3rd and 4th respondents confirmed to this court that they had filed a different appeal before the Mombasa High Court HCCA No. E250 of 2024. Ms Essanjee informed this court that they were going to seek to have that matter transferred to Kwale High Court for hearing and determination.
9. The court directed that the application be heard by way of written submissions. Learned counsels for the applicant and the 1st and 2nd respondents file their respective submissions.
10. Learned counsel for the applicant submitted that the applicant had met all the conditions for extension of time and stay pending appeal and supported the submissions with various authorities.
11. Learned counsel for the respondent on her part submits that the application is incompetent and does not lie and has traversed each of the grounds set down by the applicant in support of its application. She has also filed authorities to support her submissions.
12. I have considered the Notice of Motion application the grounds in support thereof, the supporting affidavit as well as the replying affidavit and the submissions by learned counsels together with the authorities cited. The issues for determination are whether the application has merit, what orders the court should issue and who bears the costs of the application.
13. The first prayer is for extension of time to file an appeal. The applicant has annexed a draft memorandum of appeal dated 23/8/2024. It challenges the trial court’s judgment on both liability and quantum. Therefore, the submission by learned counsel that there is no competent appeal in place is not entirely true because the court is able to see the grounds upon which the intended appeal is grounded in the draft memorandum of appeal.
14. The other preliminary issue raised by learned counsel for the 1st and 2nd respondents is that the affidavit in support of the application was sworn by the advocate for the applicants and not an officer of the applicant. On that issue, I will consider the same as an issue of procedural technicality which should not fetter the court’s authority to do substantial justice in the case. Learned counsel for the applicant had the information on what caused the delay in filing the appeal. I do not find the issue of substantial loss to be contentious, such as only the applicant’s officers could competently depose on it. There are various decisions of superior courts to the effect that substantial loss does not mean a calculable loss whether great or small that is of real worth or value as distinguished from minimal loss. It is something that can be readily appreciated whether the applicant will suffer substantial loss or not. The decretal sum herein is about KShs 2,500,000/= and this by any means cannot be considered minimal.
15. Section 79G of the Civil Procedure Act under which the prayer for extension of time is based 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.”
16. The applicant seeks time to file the appeal out of time. It delayed to file the memorandum of appeal by a whisker. It has not stated that the delay in filing the appeal was occasioned by time taken by the court to prepare and deliver to it a copy of the decree. But it deposes that it was out of a system challenge which the judiciary has acknowledged that there was a system downtime. So that in as much as that consideration does not apply in the applicant’s case it is a fact that the system downtime contributed to the delay. Under the proviso to section 79G CPA, the appeal may still 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. In applying this section, courts have held that the court has a wide discretion to extend time to file an appeal but the discretion must not be exercised capriciously but judiciously and based on sound judgment and consideration of the totality of the facts and law. In the case of Thuita Mwangi v Kenya Airways Ltd [2003] eKLR the Court of Appeal held setting out the principles for the court to consider as follows: -
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly) the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted.”
17. The Supreme Court explained further in the case of Nicholas Kiptoo Arap Korir Salat v IEBC (2014) eKLR Sup Ct Application No 16 of 2014 that:
“…extension of time is not a right of a party; a party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court. Of paramount importance, the reason for delay must be explained to the satisfaction of the Court. Further, the application for extension must be brought without undue delay and it must be demonstrated if the respondent will not suffer prejudice if extension is granted”.
18. It follows that a party seeking extension of time must first lay a basis for the delay and the reason(s) offered must be to the satisfaction of the court. This is what constitutes good and sufficient cause as required by the law. In the present application, the applicant has offered what I consider to be an explanation that is to the satisfaction of the court. A delay of three days, between Friday and Monday cannot be held to be inordinate.
19. I find that there is good and sufficient explanation for the delay in filing the appeal upon which the court can and hereby exercises its discretion to extend time to file the appeal.
20. The next issue is whether or not the court should grant a stay of execution.
21. Stay of execution pending appeal is provided for under Order 42 Rule 6 of the Civil Procedure Rules 2010 as follows;
“(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under subrule (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.”
22. From the foregoing provision of the law, the three conditions to be fulfilled for an order of stay pending appeal to issue are;
a. that substantial loss may result to the applicant unless the order is made.
b. the application has been made without unreasonable delay.
c. security as the court orders for the due performance.
23. These principles are enunciated in the case of Butt v Rent Restriction Tribunal [1982] KLR 417where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal. The court said that: -
a. The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
b. Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.
c. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
d. Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse.
24. The High Court’s jurisdiction to grant a stay of execution pending appeal under Order 42 rule 6 of the Civil Procedure Rules is circumscribed by the three conditions of, being satisfied that the application has been made without unreasonable delay, satisfaction that substantial loss may occur if the order is not granted and the furnishing of security for the due performance of the court’s orders. (See the case of Vishram Ravji Halai vs. Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365).
25. It has also been held that the court, in exercising its discretion, should also opt for the lower rather than the higher risk of injustice and finally the court will also consider the overriding objective as stipulated in sections 1A and 1B of the Civil Procedure Act, which the courts are now enjoined to give effect to. (See Machira T/A Machira & Co Advocates vs. East African Standard (No 2) [2002] KLR 63.
26. This court has found that the applicant is entitled to extension of time to file the intended appeal out of time. The applicant’s intended memorandum of appeal was filed on 26/8/2024 together with the present application and is now on record. Three days cannot be considered as unreasonable delay in filing an appeal.
27. On the issue of substantial loss, the applicant deposes that it stands to suffer prejudice if execution is levied. Since there is no precise definition of what amounts to substantial loss, I believe it is for this court to determine on the facts placed before it. No doubt if a party who is exercising a right of appeal pays out a sum of money in satisfaction of a decree that is under challenge, whatever the amount, and afterwards, if it succeeds on appeal, is made to start following the same to get it back through no other means than filing suit, it causes inconvenience and substantial loss. This loss is not just monetary alone but even the time as well as the inconvenience of following up the same. It is one thing for the respondents to depose that they have the means and another for them to tender back the money at once if and when required to. I am aware that the 1st and 2nd respondents have a decree in their favour and they are entitled to enjoy the fruit thereof. But the applicant also has their right to appeal. Balancing the two competing interests in this case, I find that the loss that would be suffered by the applicant would be substantial if the stay order is not granted.
28. However, this issue is evened out on the next requirement to be satisfied for stay of execution to issue that “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.” The applicant herein has not given any security. However, it is upon the court to ensure that it is offered before the stay order is granted. Therefore, the order of stay of execution can be granted on condition that sufficient security for the due performance of the decree is taken by the court.
29. Consequently, I find that the application herein has merit and in order not to render the intended appeal nugatory, the application is granted in the following terms:
a. The applicant is granted leave to file appeal out of time and to do so within the next 14 days.
b. Stay of execution of the judgment dated 24/7/2024 and ensuing decree in Kwale MCC No 47 of 2021 is granted pending hearing and determination of the intended appeal herein on condition that the applicant deposits into court the balance of the decretal sum within 21 days from today, the first half having been deposited at the ex parte stage.
c. Failure by the applicant to abide by the conditions hereinabove the application dated 26/8/2024 will be deemed to have been dismissed and the respondents will be at liberty to execute.
d. Costs of the application will abide the Appeal
30. Orders accordingly.
31. Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 22nd November 2024.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for applicant.
N/A for the respondent.
Johnson: Court Assistant.