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JudgmentCAPTAIN ONDABU KIAGE VS GERALD MUTINDA MUSYOKI8 min read

CAPTAIN ONDABU KIAGE VS GERALD MUTINDA MUSYOKI

High Court at Kajiado High Court · · Stella Mutuku

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

MISC. APPLICATION NO. E050 OF 2023

CAPTAIN ONDABU…………………………………………………………….APPLICANT

VERUS

GERALD MUTINDA MUSYOKA…………………………………………RESPONDENT

RULING

  1. This ruling relates to Notice of Motion dated 2nd August 2023. It is brought by the Applicant under the provisions of the law shown on the face of it. It seeks the following prayers:
  2. Spent.
  3. Spent.
  4. That this Honourable Court be pleased to stay execution of the judgment and decree in Ngong Principal Magistrate’s Court Civil Suit No, 97 of 2020 Gerald Mutinda Musyoka v Captain Ondabu Kiage pending the hearing and determination of this application.
  5. That this Honourable Court be pleased to stay execution of the judgment and decree in Ngong Principal Magistrate’s Court Civil Suit No, 97 of 2020 Gerald Mutinda Musyoka v Captain Ondabu Kiage pending the hearing and determination of the intended appeal.
  6. This this Honourable Court be pleased to extend the time for filing the appeal and grants leave to the Applicant/Intended Appellant to appeal out of time against the judgment delivered on the 10th November 2022 by the Honourable Magistrate P. Achieng, Senior Principal Magistrate, in Ngong Principal Magistrate’s Court Civil Suit No. 97 of 2020 Gerald Mutinda Musyoka v Captain Ondabu Kiage.
  7. That the costs of this Application abide the outcome of the Intended Appeal.
  8. The Applicant has advanced grounds in support of the application on the face of the Notice of Motion and in the Supporting Affidavit that the Respondent sued him in the lower court seeking general damages, loss of earnings, future medical expenses, special damages, costs and interest; that the Applicant notified his insurers who instructed an advocate to represent the Applicant; that the trial court found in favour of the Respondent and awarded him Kshs 4,358,439.50 and that the Applicant came to know about the judgment when the Respondent’s advocate served him with a demand letter requesting for payment of the decretal sum.
  9. The Applicant has stated that after becoming aware of the judgment delivered on 10th November 2022 obtained the copy of the judgment. That he was dissatisfied with the judgment by which time sufficient instructions could not be obtained from him to file the appeal within time and that by the time he was able to file the appeal, time to do so had lapsed. He has stated that the delay is not so inordinate as to be inexcusable. He states that the intended appeal has overwhelming chances of success.
  10. The Applicant has stated that the Respondents has already been paid a sum of Kshs 3,000,000 by the Insurance Company and therefore granting stay will not occasion any prejudice to him; that the Applicant will suffer prejudice if the prayers he is seeking are not granted and that the appeal will be rendered nugatory.
  11. The Respondent filed a Replying Affidavit sworn on 23rd January 2024 in which he has deposed that the Applicant was granted 30 days stay of execution after judgment was delivered; that the time to file appeal has lapsed; that in order to obtain stay, the Applicant must demonstrate that he will suffer substantial loss unless the order is granted; that the application has been filed without unreasonable delay and that he has furnished security as the court orders for the due performance of the decree and that the Applicant has not demonstrated that he has complied with those conditions.
  12. The Respondent has admitted receiving Kshs 3,000,000 from the Insurance Company and that he has been seeking the balance from the Applicant. That the application is not merited and that the Applicant is denying the Respondent the right to enjoy the fruits of the judgment.
  13. The Application was canvassed through written submissions.
  14. The Applicant has submitted on the following issues (a) whether leave to appeal out of time should be granted, and (b) whether stay of execution should be granted.
  15. On the first issue, it was submitted that the reason why the applicant was not aware of the delivery of the judgment is due to the fact that his Insurers, the CIC Insurance, were the ones handling the matter since the Applicant was comprehensively insured; that the delay in filing an appeal was occasioned by the former advocates’ inability to obtain a copy of the judgment and that the applicant should not be punished as a result of his former advocates’ failure.
  16. It was submitted that the delay of nine (9) months was beyond the applicant; that he stands to suffer substantial loss as he stands to suffer loss of Kshs 1,358,439.50 after his insurers paid Kshs 3,000,000; that he has a triable appeal with high chances of success and if the orders he is seeking are not granted, his property is at risk of proclamation.
  17. On whether stay of execution should be granted, the applicant has submitted that he has paid Kshs 150,000 leaving a balance of Kshs 250,000 to make a total of Kshs 400,000 ordered by the court and that he is willing to provide security.
  18. The Respondent submitted that extension of time to appeal out of time can be granted upon the applicant demonstrating that the delay was not inordinate and that the Respondent will not suffer prejudice (see David Mathenge Muchiri & another v. M. K [2014] eKLR; that the power of the court to grant extension of time is discretionary; that the Applicant must explain to the satisfaction of the court, the reason for the delay, whether the appeal is arguable and whether or not the Respondent can be adequately compensated in costs for any prejudice that may be suffered as a result of the exercise of the discretion.
  19. It was submitted that the delay of nine (9) months is inordinate and that the Applicant has not offered reasonable explanation for the delay. It was submitted that the Applicant has not demonstrated that his advocate wrote to the court requesting for a copy of the judgment and that the record of the court shows that counsel for the Applicant was present when judgment was delivered. That the Applicant did not file application after he was served with demand letter on 25th January 2023 and that the Applicant did not have the intention of filing this application but did so as an afterthought.
  20. On the issue of arguable appeal, it was submitted that this can only demonstrated by way of draft memorandum of appeal which the Applicant has not annexed to this application; that it is only after reading the memorandum of appeal that the court can determine whether the intended appeal is arguable. It was further submitted that the applicant has not demonstrated that costs would be sufficient compensation to the respondent if the application for leave is allowed.
  21. On whether stay of execution should be granted, the applicant must demonstrate what loss, if any, he stands to suffer should the court decline to grant stay; that the balance of the decretal sum of Kshs 1,691,345 is not substantial compared to the amount already paid; that the delay in filing this application is inordinate and that this  court should find that the explanation offered is inadequate and that the applicant has not provided security. It was submitted that the amount of Kshs 250,000 is minimal compared to the balance of Kshs 1,691,345.
  22. I have considered this application. This court has the authority to extend time within which an appeal can be filed. That power is discretionary. Section 79G of the Civil Procedure Act provides that:

Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:

Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

  1. Further, section 95 of the Civil Procedure Act also provides for the extension of time. It provides that:

Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired

  1. It is clear to my mind that an applicant invoking the discretionary jurisdiction of the court to allow him to file an appeal out of time must provide, to the satisfaction of the court, good and sufficient cause for not filing the appeal in time. The Applicant in this instant application has explained that he was let down by his former advocate. The delay was for nine (9) months. That is a long time. The Applicant strikes me as a person who sat and waited for his advocate to inform him of what was happening. He did not seem keen to follow up on the case in the lower court. Even after he was served with demand letter, he did not rush to court to file an application for extension of time. He was the owner of the case and he stood to suffer loss for the delay. He squandered time and did not actively pursue the case. To my mind, he is an indolent litigant.
  2. After careful consideration of this issue, I am not persuaded that the Applicant has demonstrated good and sufficient cause for not filing the appeal in time to persuade me to grant him the extension of time to appeal out of time.
  3. On whether this court should grant stay of execution, I have considered the material placed before this court in support of granting the orders and against granting the orders. The Applicant’s insurer has already paid Kshs 3,000,000 in satisfaction of the decree. The balance remaining is less than that amount. Order 42 (6)(2) of the Civil Procedure Rules provides that:

(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.

  1. The Applicant has submitted that he will suffer substantial loss if stay is not granted. I have considered this issue and I am not satisfied that the execution of the balance of the decretal sum will amount to substantial loss. This is because the unpaid balance is less than what has already been paid.
  2. Consequently, the application before me is not merited and is hereby declined. The Notice of Motion dated 2nd August 2023 is hereby dismissed with costs to the Respondent. Orders shall issue accordingly.

Dated, signed and delivered this 17th day of January 2025.

    CAPTAIN ONDABU KIAGE VS GERALD MUTINDA MUSYOKI CAPTAIN ONDABU KIAGE VS GERALD MUTINDA MUSYOKI