1. Bakari Salim Mwazondo the applicant herein, has filed before this Court a Notice of Motion dated 14/1/2025 seeking two orders that:
a. Leave to appeal out of time against the judgment delivered on 16/8/2024 in Kwale RMCC No. E113 of 2022 Lali Mbwana Shee v. Bakari Salim Mwazondo.
b. stay of execution of the judgment in (a) above pending the hearing and determination of the applicant’s intended appeal to the High Court.
2. The application is brought under section 1A, 1B, 3A and 79G of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure rules and all other enabling provisions of the law. The grounds in support of the application are laid on the face therefore. They are expounded in two supporting affidavits sworn on 14/1/2025. The first is by Edinah Masanya, senior claims officer for Britam, the insurers of the applicant’s motor vehicle registration number KBL 103P truck which was involved in an accident, the subject of the suit in the trial court and the intended appeal herein. The second is by Bakari Salim Mwazondo, the applicant herein.
3. In summary, the grounds are that the applicant was adjudged to pay KShs 227,000/= as damages in the trial court in a claim by the respondent for injuries sustained in an accident involving the applicant’s motor vehicle and the respondent’s motor cycle. The applicant was dissatisfied with the trial court’s decision and is desirous of filing an appeal to this court. He delayed to file the appeal due to inaction on the part of his insurers, Britam.
4. Edinah Masanya deposes that the delay was caused by the exit of the in-house counsel for Britam upon expiry of his or her contract at about the time the judgment was delivered. The said in-house counsel failed to hand over the case to Edinah Masanya as the incoming in-house legal counsel in time or inform her of the delivery of the judgment and by the time she came by the file the time for filing the appeal had lapsed.
5. Both Bakari Salim Mwazondo and Mwasanya depose that the delay in lodging this application is not inordinate, is not inadvertent and is innocent; that that the intended appeal raises arguable grounds with high chances of success.
6. With respect to the prayer for stay of execution, the two deponents depose that the respondent will commence execution which action will greatly prejudice the applicant in both the application and the appeal and the same will, be rendered nugatory in the event that it is found to have merit.
7. That if the decretal sum is paid, the respondent has not demonstrated that he is able to refund the same in the event that the appeal is successful.
8. The applicant deposes that he is ready to provide such security as shall be ordered by the court.
9. The application is opposed by the respondent through his replying affidavit sworn on 27/1/2025. He deposes that the application is vexatious, misconceived and frivolous. It does not disclose good and sufficient cause for the delay in filing the appeal. That the applicant has not attached evidence to show that either he or his advocates followed up on the matter since they were both aware of the judgment delivered on 16/8/2024 and should be dismissed.
10. That, there was inordinate delay in filing the appeal and it is an afterthought only meant to delay and frustrate his efforts to execute the judgment and enjoy the fruits of the judgment.
11. That the applicant has not demonstrated that the appeal has high chances of success.
12. That the applicant’s intention to introduce new evidence not contained in his statement of defence or at the trial is prejudicial to his case.
13. The application was heard by way of written submissions filed by learned counsels for the parties. Learned counsels also provided authorities to back up their arguments.
14. I have considered the Notice of Motion application dated 14/1/2025, the grounds in support thereof and the supporting affidavits as well as replying affidavit sworn on 27/1/2025 and the submissions by learned counsels. The issues for determination are whether the applicant has satisfied the requirements for extension of time to file an appeal and stay of execution pending appeal, what orders the court should issue and who bears the costs.
15. The first prayer is for extension of time to file an appeal and a draft memorandum of appeal is annexed to the supporting of affidavits.
16. 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.”
17. The applicant filed the present application on 15/1/2025 which is a period of four months after the due date when the appeal ought to have been filed on or before 16/9/2024. The judgment sought to be challenged was delivered on 16/8/2024. 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.”
18. 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”.
19. 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’s reason for the delay is what has come to be commonly referred to as mistake of counsel. Considering a similar application for extension of time to file an appeal out of time in the case of Bi-Mach Engineers Limited v James Kahoro Mwangi [2011] KECA 242 (KLR) Justice Waki, JA had this to say;
“The applicant had a duty to pursue his advocate to find out the position of the litigation but there is no disclosure that the applicant bothered to follow up the matter with his erstwhile advocate. It is not enough simply to accuse the advocate for failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction that is not an excusable mistake which the court may consider with some sympathy. "
20. In the present case, the applicant has not informed the court that he was not aware of the date of delivery of the judgment or the time within which to file the appeal. He did not take any action to follow up with his insurance to find out whether they would be settling the claim as adjudged or filing an appeal. Learned counsel for the applicant has cited the case of Agip (Kenya) Limited v Highlands Tyres Ltd [2001] KEHC 843 (KLR) and says that in that case, a delay of eight months was found not inordinate and the application allowed. That case is however very different from the present one in the sense that the issue in that case was whether or not a suit ought to be dismissed for want of prosecution and not for extension of time to appeal. Contrary to the above decision, in the case of Bi-Mach Engineers above, the Court found that a delay of two months in filing an application for extension of time to appeal was inordinate and dismissed the application.
21. In the present case, there is no further evidence supporting the deposition that one advocate left Britam insurance company. The name of the alleged advocate is not disclosed, the contract that was allegedly expiring at the time the judgment by the trial court was delivered has not been made available. But even if those were made available, I would still find the reason unsatisfactory first on the holding in the Bi-Mach case above and also for the reason that the explanation is plainly unsatisfactory. That an insurance company can leave its legal department unattended for a period of four months is inexcusable. Under the overriding objective of the Civil Procedure Act (Cap. 21) Laws of Kenya and the rules made thereunder being to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act, it is provided that:
S. 1A(3) “A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.
22. Indeed, as circumstances are the court can only sympathize with the applicant for relying on his insurance company which seems to have let him down but go no further than that.
23. The applicant herein is lucky that for four months, the respondent did not take steps to execute the judgment. I find that the failure to offer sufficient explanation for the delay falls victim to the respondent’s complaint that the application was made only with a view to delay enjoyment of his fruits of the judgment. Such kind of conduct on the part of an applicant for extension of time cannot be countenanced by the court.
24. There can be no gainsaying that further delay in giving effect to the judgment would be prejudicial to the respondent who expects to enjoy the fruits of his judgment at the earliest.
25. I find that there being no good and sufficient explanation for the delay in filing the appeal, the court has no basis upon which to exercise its discretion to extend time to file the appeal and consider the draft memorandum of appeal herein as duly filed.
26. The substratum of the application having been the extension of time, it follows that the court has no ground upon which to anchor the prayer for stay of execution and so the same need not be considered.
27. The entire application is found to be without merit and the same is dismissed.
28. The costs of the application are awarded to the respondent.
29. Orders accordingly.
30. Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 26th day of February 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Ms Osewe for the Applicant.
Ms Mmbasu for the Respondent.
David Josek Nanzushi: Court Assistant.
a. Leave to appeal out of time against the judgment delivered on 16/8/2024 in Kwale RMCC No. E113 of 2022 Lali Mbwana Shee v. Bakari Salim Mwazondo.
b. stay of execution of the judgment in (a) above pending the hearing and determination of the applicant’s intended appeal to the High Court.
2. The application is brought under section 1A, 1B, 3A and 79G of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure rules and all other enabling provisions of the law. The grounds in support of the application are laid on the face therefore. They are expounded in two supporting affidavits sworn on 14/1/2025. The first is by Edinah Masanya, senior claims officer for Britam, the insurers of the applicant’s motor vehicle registration number KBL 103P truck which was involved in an accident, the subject of the suit in the trial court and the intended appeal herein. The second is by Bakari Salim Mwazondo, the applicant herein.
3. In summary, the grounds are that the applicant was adjudged to pay KShs 227,000/= as damages in the trial court in a claim by the respondent for injuries sustained in an accident involving the applicant’s motor vehicle and the respondent’s motor cycle. The applicant was dissatisfied with the trial court’s decision and is desirous of filing an appeal to this court. He delayed to file the appeal due to inaction on the part of his insurers, Britam.
4. Edinah Masanya deposes that the delay was caused by the exit of the in-house counsel for Britam upon expiry of his or her contract at about the time the judgment was delivered. The said in-house counsel failed to hand over the case to Edinah Masanya as the incoming in-house legal counsel in time or inform her of the delivery of the judgment and by the time she came by the file the time for filing the appeal had lapsed.
5. Both Bakari Salim Mwazondo and Mwasanya depose that the delay in lodging this application is not inordinate, is not inadvertent and is innocent; that that the intended appeal raises arguable grounds with high chances of success.
6. With respect to the prayer for stay of execution, the two deponents depose that the respondent will commence execution which action will greatly prejudice the applicant in both the application and the appeal and the same will, be rendered nugatory in the event that it is found to have merit.
7. That if the decretal sum is paid, the respondent has not demonstrated that he is able to refund the same in the event that the appeal is successful.
8. The applicant deposes that he is ready to provide such security as shall be ordered by the court.
9. The application is opposed by the respondent through his replying affidavit sworn on 27/1/2025. He deposes that the application is vexatious, misconceived and frivolous. It does not disclose good and sufficient cause for the delay in filing the appeal. That the applicant has not attached evidence to show that either he or his advocates followed up on the matter since they were both aware of the judgment delivered on 16/8/2024 and should be dismissed.
10. That, there was inordinate delay in filing the appeal and it is an afterthought only meant to delay and frustrate his efforts to execute the judgment and enjoy the fruits of the judgment.
11. That the applicant has not demonstrated that the appeal has high chances of success.
12. That the applicant’s intention to introduce new evidence not contained in his statement of defence or at the trial is prejudicial to his case.
13. The application was heard by way of written submissions filed by learned counsels for the parties. Learned counsels also provided authorities to back up their arguments.
14. I have considered the Notice of Motion application dated 14/1/2025, the grounds in support thereof and the supporting affidavits as well as replying affidavit sworn on 27/1/2025 and the submissions by learned counsels. The issues for determination are whether the applicant has satisfied the requirements for extension of time to file an appeal and stay of execution pending appeal, what orders the court should issue and who bears the costs.
15. The first prayer is for extension of time to file an appeal and a draft memorandum of appeal is annexed to the supporting of affidavits.
16. 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.”
17. The applicant filed the present application on 15/1/2025 which is a period of four months after the due date when the appeal ought to have been filed on or before 16/9/2024. The judgment sought to be challenged was delivered on 16/8/2024. 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.”
18. 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”.
19. 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’s reason for the delay is what has come to be commonly referred to as mistake of counsel. Considering a similar application for extension of time to file an appeal out of time in the case of Bi-Mach Engineers Limited v James Kahoro Mwangi [2011] KECA 242 (KLR) Justice Waki, JA had this to say;
“The applicant had a duty to pursue his advocate to find out the position of the litigation but there is no disclosure that the applicant bothered to follow up the matter with his erstwhile advocate. It is not enough simply to accuse the advocate for failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction that is not an excusable mistake which the court may consider with some sympathy. "
20. In the present case, the applicant has not informed the court that he was not aware of the date of delivery of the judgment or the time within which to file the appeal. He did not take any action to follow up with his insurance to find out whether they would be settling the claim as adjudged or filing an appeal. Learned counsel for the applicant has cited the case of Agip (Kenya) Limited v Highlands Tyres Ltd [2001] KEHC 843 (KLR) and says that in that case, a delay of eight months was found not inordinate and the application allowed. That case is however very different from the present one in the sense that the issue in that case was whether or not a suit ought to be dismissed for want of prosecution and not for extension of time to appeal. Contrary to the above decision, in the case of Bi-Mach Engineers above, the Court found that a delay of two months in filing an application for extension of time to appeal was inordinate and dismissed the application.
21. In the present case, there is no further evidence supporting the deposition that one advocate left Britam insurance company. The name of the alleged advocate is not disclosed, the contract that was allegedly expiring at the time the judgment by the trial court was delivered has not been made available. But even if those were made available, I would still find the reason unsatisfactory first on the holding in the Bi-Mach case above and also for the reason that the explanation is plainly unsatisfactory. That an insurance company can leave its legal department unattended for a period of four months is inexcusable. Under the overriding objective of the Civil Procedure Act (Cap. 21) Laws of Kenya and the rules made thereunder being to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act, it is provided that:
S. 1A(3) “A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.
22. Indeed, as circumstances are the court can only sympathize with the applicant for relying on his insurance company which seems to have let him down but go no further than that.
23. The applicant herein is lucky that for four months, the respondent did not take steps to execute the judgment. I find that the failure to offer sufficient explanation for the delay falls victim to the respondent’s complaint that the application was made only with a view to delay enjoyment of his fruits of the judgment. Such kind of conduct on the part of an applicant for extension of time cannot be countenanced by the court.
24. There can be no gainsaying that further delay in giving effect to the judgment would be prejudicial to the respondent who expects to enjoy the fruits of his judgment at the earliest.
25. I find that there being no good and sufficient explanation for the delay in filing the appeal, the court has no basis upon which to exercise its discretion to extend time to file the appeal and consider the draft memorandum of appeal herein as duly filed.
26. The substratum of the application having been the extension of time, it follows that the court has no ground upon which to anchor the prayer for stay of execution and so the same need not be considered.
27. The entire application is found to be without merit and the same is dismissed.
28. The costs of the application are awarded to the respondent.
29. Orders accordingly.
30. Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 26th day of February 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Ms Osewe for the Applicant.
Ms Mmbasu for the Respondent.
David Josek Nanzushi: Court Assistant.