1. The application for determination is dated 12/02/2024. It was filed under certificate of urgency and is brought under Article 159 (2) (d) of the Constitution of Kenya, Sections 79G, 1A & 3A of the Civil Procedure Act, Order 22 Rule 22, Order 42 Rule 4 & 6 and Order 51 Rules 1 & 3 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. It seeks the following orders;
a) Spent.
b) Spent
c) THAT this honorable Court be pleased and hereby grants the Applicants leave to file an appeal out of time against the judgment delivered by Hon. Geno L. Okwengu (SRM) in Kilungu CMCC No. E258 of 2022.
d) THAT upon granting prayer (c) above, the court be and is hereby pleased to order stay of execution of the judgment and decree in Kilungu CMCC No. E258 of 2022 pending the hearing and determination of the Applicants’ intended appeal.
2. The application is supported by the grounds on its face and the Affidavit of the 1st Applicant sworn on the same day and another Affidavit by the Legal Manager of Geminia Insurance Co. Ltd sworn on the same day.
3. The 1st Applicant deposed that the judgment was initially scheduled for delivery on 13/10/2023 but the trial court was not sitting. That it was rescheduled to 27/10/2023 and then 01/11/2023 and ultimately 03/11/2023. That on 03/11/2023, parties waited on the lobby all day without being admitted to the virtual session and it was only after her counsel contacted the registry that he was informed that the judgment would be delivered on notice.
4. She deposed that on 09/01/2024, her counsel discovered that the judgment had been delivered after receiving an email from the Respondent’s counsel advising on the terms of judgment and calling for payment. That the correspondence between her counsel and the insurance company took some time and by the time instructions to appeal were given, the time within which to file an appeal had lapsed. That the delay in filing the appeal within time was caused by an excusable human error.
5. She deposed that the Respondents have already extracted a decree and execution is likely to commence soon. A copy is exhibited as EK1. That grounds of appeal have raised triable issues and the intention is not to delay the Respondents from reaping the fruits of their judgment. A draft memorandum of appeal is exhibited as EK2.
6. She deposed that the decree is for a substantial amount which they may not recover from the Respondents. That they are ready, able and willing to deposit a bank guarantee as security for due performance of the decree and to abide by any other conditions that the court may impose. That the application has been made without unreasonable delay and will not occasion any prejudice to the Respondents.
7. On her part, the Legal Manager, Patricia Mugambi reiterated the contents of the Applicants’ affidavit and deposed that as the Applicants’ insurer and being the ones to settle the decretal sums, they are dissatisfied with the award of the trial court on loss of dependency and are desirous of appealing through the Applicants under the doctrine of subrogation. That if leave to appeal is not granted, the Applicants will be denied access to justice. She deposed that they are ready, able and willing to deposit a bank guarantee as security for due performance of the decree and abide by any other conditions that the honorable court may impose.
8. The application is opposed through the 1st Respondent’s replying affidavit and he deposed that he had been authorized by his co-Respondent to swear the Affidavit. That the advice from his advocates is that the application is misplaced, misguided, incompetent, misconceived, malicious, bad in law and an abuse of the court process and should be dismissed in limine.
9. He deposed that the prayer for leave to appeal out of time should be dismissed because; firstly, the applicants have not offered a plausible explanation for the delay of over 3 months. Secondly, that the judgment date of 03/11/2023 was issued by the trial court in their presence and they have not demonstrated any efforts, if at all, made in following up with the trial Court to establish if the Judgment was eventually delivered as scheduled or not. Thirdly, that the applicants’ advocates were notified of the delivery of judgment on 03/01/2024 and not 09/01/2024 as indicated in the supporting affidavits. That the email for 09/01/2024 was merely a reminder. Email correspondence is exhibited as MM-1.
10. Fifthly, that his Advocates on record took upon themselves to peruse the trial court’s judgment and wrote a very detailed letter dated 03/01/2024 to the Applicants’ Advocates advising them on the terms of the judgment and even extracted the Decree in good faith and shared the same with the Applicants’ Advocates as early as 03/01/2024. The letter and decree are exhibited as MM-2 & 3 respectively. Sixthly, that on 11/01/2024, the Applicants’ Advocates requested for 30 days stay of execution effective from 09/01/2024 to allow their client deal with the matter and the request was allowed. The email correspondence between the Advocates is exhibited as MM-4.
11. The seventh reason advanced by the respondents is that the Applicants have not explained to this court at all the reason as to why they did not move the court promptly upon being served with a copy of the Decree of the trial court on 3rd January, 2024. That there is also no explanation as to what prevented the applicants from moving the Court within the 30 days of stay of execution that was mutually agreed upon between the Advocates.
12. The Respondent also deposed that there are no sufficient material on record to enable this Court determine whether or not the Applicants have an arguable appeal as the applicants have not availed a copy of the impugned judgment.
13. With regard to the prayer for stay of execution, the Respondent deposed that the advice from his advocate which he believes is that such an application should be made within an existing appeal and not an application for extension of time to file an intended appeal.
14. As for the prayer to deposit a bank guarantee as security, the Respondent deposed that since the application is for disposal for want of an existing appeal, the prayer should not be entertained. That if the court is inclined to grant extension of time and stay of execution, the Applicants and their insurer should be ordered to deposit the decretal sum of Kshs. 4,132,785/- into a joint interest earning Bank Account to be opened in the joint names of the Applicants’ and Respondents’ Advocates considering the fact that money depreciates in value unless kept in an interest earning account.
15. He deposed that if the application is allowed, the estate of his deceased wife will suffer a lot of inconvenience as one of the beneficiaries is his late wife’s biological mother who is sickly and of advanced age and their minor son who is in dire need of school fees. That the advice from his advocate is that the better part of the impugned judgment was by consent of the parties on the issue of liability and as such, the Applicants should be ordered to pay the statutory sum of Kshs. 3,000,000/- plus the Auctioneers fees on Proclamation of Attachment before any further orders are issued in this matter to ensure justice is served upon the successful litigants. Copies of proclamation Notice and Invoice for Auctioneers fees are exhibited as MM-5 & 6.
16. He deposed that the advice from his advocate is that the award of damages by the trial Court is highly supported by similar awards in previous similar decided cases and therefore, the intended appeal has no chances of success.
17. In rejoinder, the 1st Applicant swore a supplementary affidavit on 11/04/2024 where she deposed that on 09/01/2024, their advocate returned from December holiday and discovered that the judgment had been delivered in open court in the absence of parties. A copy of the judgment is exhibited as EKN3. That their request for 30 days stay of execution from the Respondents was only to allow the insurer to trace and retrieve their file and consider it together with the judgment advise before issuing instructions. That the request was not a commitment to settle the decretal sum. Email correspondence to the Respondents’ counsel is exhibited as EKN4.
18. She deposed that the prayer seeking the settlement of the statutory sum of kshs 3,000,000/= is unsubstantiated and highly prejudicial as it is akin to determining the intended appeal without a hearing. That the prayer for settlement of the auctioneers’ fees is also unsubstantiated and misleading as the impugned proclamation notice and auctioneers’ invoice have never been served upon the applicants.
19. She deposed that the onus is on the Respondents to demonstrate their ability to repay the statutory sum or remainder thereof if the appeal succeeds and they have failed to discharge that burden.
20. The application was canvassed through written submissions.
The Applicants’ Submissions
21. The Applicants acknowledged that the decision on extension of time is discretionary and submitted that the factors to consider were elaborated in Leo Sila Mutiso -vs- Hellen Wangari Mwangi Nai CA 255 of 1997 (UR) as cited in Emmanuel Ngade Nyoka -vs- Kitheka Mutisya Ngata Court of Appeal at Mombasa; Civil Application No. 17 of 2016 as follows; length of delay, reason for delay, chances of appeal succeeding and the degree of prejudice to the respondent.
22. They submitted that the delay has been explained, that the appeal is meritorious and that the Respondent will not be prejudiced in any way. That the appeal is mainly on the award for loss of dependency given the evidence adduced on deceased’s age, dependents and alleged earnings.
23. With regard to the prayer for stay, they relied on HGE -vs-SM (2020) eKLR and Order 42 of the Civil Procedure Rules for the submission that the conditions to be satisfied before the prayer can be granted are; demonstration of substantial loss, whether application has been made without unreasonable delay and furnishing security for costs.
24. On substantial loss, they submitted that the decretal sum is substantial and the Respondents have not demonstrated ability to refund by attaching evidence to show that they are persons of means. They contended that the onus of proving such ability is on the Respondents. They relied on Mangate Ventures -vs- Simon Mutua Muatha & Anor (2018) eKLR where the court stated;
“25. It was the considered view of this court that substantial loss does not have to be a colossal amount of money. It is sufficient if an applicant seeking a stay of execution demonstrates that it will go through hardship such as instituting legal proceedings to recover the decretal sum it paid to a respondent in the event that his or her appeal was successful. Failure to recover such decretal sum would render his appeal nugatory if he or she were successful.
26. Notably, the 1st respondent herein did not file an affidavit of means to demonstrate that he was in a good financial position to repay the appellant the decretal sum in the event the appellant was successful in his appeal….”
25. They submitted that the delay in filing the application and appeal has been explained in detail and the same is excusable. That they should not be locked out from the seat of justice due to lapse of time in presenting the motion.
26. They submitted that they have offered and or proposed security for the due performance of the decree as a sign of good faith that their insurer is ready and willing to commit to giving security in due performance of the decree. They relied on Feroz Nuralji Harji -vs- Housing Finance of Kenya Ltd & Watts Enterprises Ltd; Nairobi High Court Civil Case No. 226 of 2003 where the court stated;
“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 two of them. So long as it is adequate, then the form of it is a matter which is immaterial. It would be easier for the defendant or if for any reason they would prefer to provide security by a bank guarantee rather than cash. There is absolutely no reason in principle why they should not do so.”
27. They submitted that the intended appeal raises triable issues with regard to the wrong principles of evidence, authorities and the insurance law in general in assessing damages vis-à-vis the loss suffered under loss of dependency. That the intended appeal is also arguable as it raises legal and factual ground.
28. They submitted that the application has been brought in good faith as the Respondents will not suffer any prejudice. That they are simply seeking to ensure that justice is accorded to both parties.
The Respondents’ Submissions
29. They identified the following as the issues for determination;
a) Whether the Application for leave to file an appeal out of time is merited;
b) Whether the Application for stay of execution of the trial court’s judgment and decree pending the hearing and determination of the intended appeal should be granted in this Application; and
c) Who should bear the costs of the Application?
30. On whether the application to appeal out of time is merited, they submitted that the applicants have not filed any appeal so far which could be admitted out of time and are basically seeking for extension of time so that they can file their intended appeal. They relied on Nicholas Kiptoo Arap Korir Salat -vs- IEBC & 7 others [2014] eKLR where the Supreme Court stated:
“It is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for the delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant. We denote the following as the underlying principles that a court should consider in exercising such a discretion.
Extension of time is not a right of a party. It’s an equitable remedy that is only available to a deserving party at the discretion of the court.
A party who seeks extension of time has the burden of laying a basis to the satisfaction of the court whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis. Where there is a reasonable cause for the delay, the same should be expressed to the satisfaction of the court; whether there would be any prejudice suffered by the respondent if extension is granted, whether the application has been brought without undue delay and whether in certain cases like election petitions, public interest should be a consideration for extending time.”
31. They submitted that the delay of over 2 months since the lapse of statutory timelines on 03/12/2023 until 13/02/2024 when the application for extension of time was filed, is inordinate, unexplained and should not be excused.
32. As to whether there are any extenuating circumstances that can enable the court to exercise its discretion in favor of the Applicants, they submitted that the Applicants have not given any plausible reason as to why they did not file their intended appeal in time and the fact that they enjoyed a stay of execution for over a month clearly shows that the applicants are not acting in good faith. They contended that the intended appeal is merely an afterthought meant to further delay enjoyment of the fruits of successful litigation. They relied on Winnie Wairimu Macharia -vs- Elelion Company Limited [2019] eKLR, where the court stated;
“…In my view Section 79G of the Act should be interpreted and construed in a liberal manner that dilutes its letter and spirit to advance substantial justice. This is to lock out vexatious litigants who are desirous of filing an appeal so as to sequence it in the queue before the Court of Appeal as denying a successful litigant access to the fruits of the Judgment.
The courts should be slow to admit a party to file an appeal out of time as a matter of course who has not discharged evidential burden on good and sufficient cause on filing an appeal out of time on a serious issue to be tried on appeal. This application is therefore incompetent and must be dismissed with costs…”
33. With regard to the prayer for stay of execution, they submitted that if the applicants are granted leave to appeal out of time, this court should reserve the prayer for determination in the appeal once the same is filed. They relied on the case of Winnie Wairimu Macharia (supra) where the court stated:
“…In view of what I said above, the applicant is not entitled the orders of stay of execution where there has been no appeal filed or admitted out of time by this court. The prayer on stay of execution is equally dismissed…”
34. They also relied on Subru Motors Limited -vs- Linet Nehema Onyoni [suing as the administratix & legal representative of the estate of Gibon Gisore Ogechi [deceased], & 2 others [2020] eKLR, where the court (C.W Githua J) stated;
“22…In my view, the above rule is clear that a court can only grant stay of execution of a judgment or order if an appeal has already been filed and is pending hearing. My take is that the existence of an appeal is a condition precedent to the exercise of the courts discretion under Order 42 Rule 6(1) of the Rules. Needless to state, there is no appeal pending before this court and that is why the applicant sought in prayer 1 leave to file its appeal out of time…”
35. They submitted that save for stating that the decree is for a substantial sum, the Applicants have not demonstrated the substantial loss that they stand to suffer considering that they are only contesting the award for loss of dependency. They contended that from the affidavit of the Legal Manager, the only reason for appealing is because the insurance company shall be called to pay the decretal sum and not because the Applicants have an arguable appeal or stand to suffer any loss at all. They relied on Jeremiah Meeme & another -vs- Peter Muriungi Arimi [2015] eKLR where the court stated;
“16… I have said in other cases that mere averment that “assets or sources of income of the Respondent are not known” is not sufficient; that would be and is the easiest assertion any Applicant can make. There has to be cogent evidence that creates reasonable financial limitation on the part of Respondent as to call upon the Respondent to rebut…”
36. With regard to provision of security, they submitted that the Applicants are only challenging the award on loss of dependency and should therefore be ordered to pay Ksh 3,000,000/= and deposit the rest in a joint interest earning account. They relied on Motorology Limited & another -vs- Benson Mutua Mutiso [2022] eKLR where the court stated;
“10…Turning now to the issue on whether the applicant is likely to suffer substantial loss if the stay orders sought are not granted, I note that the intended appeal is on quantum of damages only. In my view, therefore, if the whole amount is paid, and the appeal succeeds, the applicant is likely to suffer substantial loss if the amount so paid is not repaid. I will thus grant stay subject to payment of part of the decretal sum to the respondent…
11…As regards the provision of security by the applicant, in my view, the part of the decretal amount to be paid by the applicant herein will be sufficient security…”
37. It was also their submission that all the reasons given for the delay clearly show that despite being aware of the trial court’s judgment delivered on 03/11/2023 and having been notified of the terms of the said judgment as early as 03/01/2024, the Applicants and their insurer decided to take their time in deciding whether to move the Court or not. That they only moved this court after being served with a Proclamation of Attachment notice on 13/02/2024. They contended that such conduct cannot be construed to be excusable human error.
38. Having looked at the application, the supporting affidavits, the replying affidavit and the rival submissions, the only issue for determination is whether the application is merited;
Analysis
39. 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.
40. The proviso implies that an intended appeal should be in place or be filed together with the application seeking leave for extension of time to file it. This view is buttressed by Mugo & Others –vs- Wanjiru & Anor [1970] EA 482 where the court stated as follows:-
“Clearly, as a general rule the filing and service of the notice of appeal ought to be regularized before or at least at the same time as an application is made to extend the time for filing the record and the fact that this has not been done might be a reason for refusing the application or only allowing one on terms as to costs. But it does not mean that such an application must be refused.”
41. In our case the applicant has attached a draft memorandum of appeal to this miscellaneous application which, in my view, qualifies as an intended appeal for purposes of guiding the court on whether to the grant the orders sought.
42. It is now well settled that the extension of time or its denial is an exercise of discretion by the court. In Leo Sila Mutiso (supra) the Court of Appeal stated 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”.
43. The judgment was delivered on 03/11/2023 and this application was filed on 13/02/2024, approximately 100 days later. The law requires appeals from subordinate Courts to the High Court to be filed within 30 days from the date of the decree or order appealed against. After lapse of the statutory period, the delay in this matter is 70 days.
44. The Applicants explained that on the day the judgment was scheduled for delivery, they waited at the lobby all day without being admitted to the virtual session and when their counsel contacted the registry, he was told that judgment would be delivered on notice. The respondents said that there was no effort by the applicants to establish whether the judgment was delivered as scheduled but, in my view, the act of contacting the registry should count for some effort made. The judgment itself does not indicate that it was delivered in the presence of the parties and the respondents have not indicated that they learnt about it on 03/11/2023.
45. Be that as it may, the Respondents email correspondence shows that the Applicants were made aware of the terms of the judgment on 03/01/2024 and a reminder was done on 09/01/2024. It is therefore not accurate for the Applicants to claim that they learnt about the judgment on 09/01/2024. Having learnt about the judgment on 03/01/2024, the current application was filed approximately one month later on 13/02/2024 and having considered the explanation by the Applicants, it sounds plausible and the delay excusable.
46. As regards the prayer for stay, Order 42 Rule 6 of the Civil Procedure Rules is instructive on the conditions which should guide the Court. They are; whether substantial loss will occur if stay is not granted, whether the application has been filed without unreasonable delay and furnishing security for the due performance of the decree. I have already dealt with the question of delay.
47. As for substantial loss, the Applicants deposed that the decretal award is substantial hence their apprehension that if it is released to the Respondents, they may not recover the same if the appeal succeeds.
48. The judgment shows that the parties consented on liability in the ratio of 85:15 in favor of the Respondents and the trial court assessed damages as follows; pain & suffering-50,000/-, loss of expectation of life-150,000/=, loss of dependency-4,150,000/=, special damages 167,900/=, total after contribution- 3,840,215/=. The decree indicates a decretal amount of Ksh 3,879,985/= and costs of 252,800/=.
49. The Respondents argued that the Applicants have not demonstrated the substantial loss which they will suffer if stay of execution is not granted but looking at the memorandum of appeal, the appeal is against the award on loss of dependency only and evidently, that constitutes the bulk of the award. Information on financial means is exclusive and since the Respondents did not file an affidavit of means, the court has no way of knowing their capacity to refund in the event that the award is slashed. Consequently, substantial loss is likely to occur.
50. As for security, the Applicants offered to deposit a bank guarantee and to abide by any other conditions that the court may impose. The proposed bank guarantee was not exhibited and the prudent thing to do in the circumstances is for the Applicants to release part of the decretal award to the Respondents. That will ensure that the Applicants’ right to pursue an appeal is protected as well as the Respondents’ right to enjoy the fruits of their judgment.
51. In the circumstances the following orders issue:
1. THAT the applicants be and are hereby granted leave to file an appeal out of time against the judgment delivered by Hon. Geno L. Okwengu (SRM) in Kilungu CMCC No. E258 of 2022. The appeal be filed and served within 30 days hereof and a mention before the DR for compliance
2. THAT an order to stay of execution of the judgment and decree in Kilungu CMCC No. E258 of 2022 be and is hereby issued pending the hearing and determination of the Applicants’ intended appeal.
3. THAT the stay is on condition that within 30 days hereof the applicant do pay to the respondent the sum of Ksh 1.5 million out of the total award (after contribution) and balance be deposited in court or in a joint interest account in the names of counsel for the parties. In default the stay will lapse automatically, the application will stand dismissed with costs to the respondent.
4. Orders accordingly
Dated, signed and delivered via CTS on 27th August 2024.
Mumbua T Matheka
Judge