RULING
1. Before me is the Notice of Motion dated 7/2/2024.2. It is brought under section 42 Rule6, Order 50 Rule6 of Civil Procedure Rules, section 1A, 1B and 3A of the Civil Procedure Act.
3. It seeks orders:
1) Spent
2) Spent
3) That the applicant be granted leave to file the intended appeal out of time, and the draft memorandum of appeal annexed herewith, be deemed as having been duly filed.
4) That pending the hearing and determination of the appeal, there be a stay of execution of the lower court’s judgment herein issue vitz, Kilungu PMCC No. E045 of 2022.
5) That costs of this application be provided for.
4. It is supported by the grounds on its face and in the supporting affidavit sworn by Enock Mutinda Kioko – the applicant on 7/2/2024.
5. The grounds are inter alia:-
1) That the lower court entered judgment herein against him and which judgment is grossly irregular and punitive.
2) That upon learning of the said judgment and having read the same, his advocates (then on record) convinced him that an auxiliary suit against the insurance company was appropriate and adequate, and he proceeded to file one.
3) That he prosecuted the interim application in the said suit and was granted a stay of execution order which is still subsisting and is to expire on the 15th February 2024.
4) That being aggrieved by the judgment herein issue, he has always intended to have this Honourable court address the same on appeal and having excusably ran out of time, this application has become necessary.
5) That as earlier indicated, there has been no inordinate delay and /or inertia on his part as more particularly laid out at paragraph (3) hereinabove, and he urge the court to grant him the leave sought.
6) That it is only fair that his honourable court does issue a stay of execution pending the intended appeal to safeguard the status quo and the outcome of the said appeal from being rendered nugatory.
7) That his appeal herein is well founded on points of law and fact as indicated on the draft memorandum of appeal and has high chances of success.
8) That in any event, the respondents stand to suffer no prejudice at all were the orders sought herein to be granted and he hereby undertakes to offer security as and when called by this honourable court to do so.
6. The applicant filed a memorandum of appeal where he contends:
1) That the learned magistrate erred in law and fact in finding that the defendants were 100% liable for the accident that occurred in that there was no contributory negligence on the part of the rider of motor cycle registration number KMC 133Q.
2) That the learned magistrate erred in law and fact in awarding Kshs.150,000/= under pain and suffering which amount is excessive in the circumstances where the deceased was deceased was hospitalized for only six days prior to his death.
3) That the learned magistrate erred in law and fact in adopting a multiplier of 32 years with a multiplicand of Kshs.14,658.85 thereby arriving at a sum of Kshs.3,752,665.60 which amount is not only erroneous but excessive, and that too, without any evidential foundation.
4) That the learned magistrate erred in law and fact in awarding Kshs. Under the loss of expectation of life without an explanation on how the said amount was assessed.
And seeks:
1) The appeal herein be allowed with costs.
2) The judgment of the lower court and all consequential orders be set aside and vacated, ex debito justiciae.
3) The respondent’s said suit be and is hereby dismissed with costs.
7. The application is opposed through the replying affidavit of Charles Kavoo Paul the 2nd respondent. The grounds as set out in the response are inter alia:
1) That the judgment sought to be appealed against was delivered on 19/12/2022, a period of well over one year ago. The delay in filing the said application is not only inordinate but also inexcusable.
2) That the so called auxiliary suit (Kilungu MCCC/E116/2023) was filed on 26/4/2023 a period of over four (4) months from the date of delivery of the judgment sought to be appealed against. The intended appeal ought to have been filed on or before 18/1/2023 and the said auxiliary suit was not at all a challenge on the said judgment.
3) That the applicants have no explanation as to how they mistook the said auxiliary suit to be an appeal. In the said auxiliary suit the applicants were merely resisting execution.
4) That the applicants failed, refused or ignored (to date) to comply with the orders of the subordinate court made in the said auxiliary suit directing them to deposit half of the decretal sum in Kilungu MCCC/E045/2022 and MCCC/e036/2022 in a joint interest account within 60 days from 20/9/2023 and extended (by consent) by a further 45 days from 7/12/2023. The said application is clearly an afterthought and a classic case of abuse of the court process.
5) That allowing the said application would be tantamount to creating a very bad precedent.
6) That the applicants have not demonstrated the alleged high chances of success in the intended appeal.
7) That justice delayed is justice denied. The applicants have employed all manner of delay tactics to avoid settling the decretal sum in the subordinate court. The said application is yet another delay tactic aimed at frustrating the respondents who are entitled to enjoy the fruits of their judgment. It cannot therefore be said that the respondents stand to suffer no prejudice at all.
8) That further, in view of the applicant’s failure to comply with the orders of the subordinate court in the said auxiliary suit made on 20/9/2023 and 7/12/2023, he urges this honourable court to vacate and/or discharge the interim orders issued herein on 12/2/2024.
8. The respondent seeks that the application be dismissed.
9. Parties filed submissions in lieu of arguing the application.
10. The applicant laid out the factual background to the application as already laid out in his affidavit. The applicant set down the issues for determination as “whether the application dated 7/2/2024 has merit and ought to be entertained”
11. On the issue of leave to file appeal out of time the applicant urges the court to exercise its discretion in his favour that the judgment of the lower court was grossly irregular and punitive and as demonstrated by the memorandum of appeal, he has an arguable appeal. He relies on: Michael Opiyo vs- Solomon Kimeli Bor & Anor [2021] e KLR where the court stated;
“It is now trite that an arguable appeal is not necessarily one that must succeed; and that even one arguable point is sufficient for purposes of section 79G of the Civil Procedure Act.”
12. On the exercise of discretion in a matter of this nature he urges the court to be guided by Supreme Court in Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission & 7 Others {2014} e KLR which set out the considerations to guide the court in exercising its discretion in applications such as the one before this honourable court. The court stated:
i. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
ii. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
iii. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;
iv. Whether there will be any prejudice suffered by the respondents if the extension is granted;
v. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
13. Regarding the period of delay in filing this application the applicant directs the court to Section 79G of the Civil Procedure Act which states:
Time for filing appeals from subordinate courts 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.
14. The applicant concedes that the judgment in Kilungu PMCC No. E045 of 2022 was delivered on 19/12/2022 yet this application was filed on 7/2/2024 more than a year later.
15. The applicant argues that despite this length of period of time – this court still can grant him the orders – he cites Moses Mwangi Kimani vs Shammi Kanjirapparambi Thomas & 2 Others [2014] e KLR where the Judge stated:
“There is no precise measurers of what amounts to inordinate delay as that would differ from case to case depending on the circumstances and facts of each case; for instance, the subject matter of the case; the nature of the case; the explanation given for the delay; and so on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable…”
He argues that one year, 24 days is not inordinate delay and refers to
Miscellaneous Civil Appeal E002 of 2022; Tonui vs National Bank of Kenya (Miscellaneous Civil Appeal E002; [2022] KEHC 2977 (JKR) (20 June 2022) (Ruling)
16. He proceeds to explain the delay – that he was advised by his previous legal counsel to file Civil Suit No. 116/2023 which he believed was an appeal against Kilungu PMCC E045/22. He urged the court not to penalize him for the mistakes of his counsel. He relied on Gideon Mose Onchwati vs Kenya Oil Co. Ltd & Another (2017) e KLR the court of appeal held that:
“Although it is an elementary principle of our legal system that a litigant who is represented by an advocate, is bound by the acts and omissions of the advocates in the course of representation, in applying that principle, courts must exercise care to avoid abuse of the system and or unjust or ridiculous results. A litigant ought not to bear the consequences of the advocates default unless the litigant is privy to the default or the default results from failure, on the part of the litigant, to give the advocate due instructions; Philip Chemowolo & Another vs Augustine Kubende [1986] KLR it was stated that:
“I think a distinguished equity Judge has said:
Blunders will continue to be made from time to time and it does not follow that because a mistake has been made, that a party should suffer the penalty of not having his case heard on merit …”
17. He argues that this court is bound by section 1A and 1B of the Civil Procedure Act to do justice.
18. With regard to the question of prejudice against the respondent – it is submitted that the respondent will not suffer prejudice and any prejudice can be compensated by way of cost.
19. On the issue of the stay of executing pending appeal; the applicant relies on Order 42 Rule 6 of the Civil Procedure Rule which he cites. He relies on : Civil Appeal E003 of 2022, Nicholas Stephen Okaka & Another vs Alfred Waga Wesonga [2022] e KLR, the honourable court observed as follows;
“21. Further to the above, stay may only be granted for sufficient cause and that the court in deciding whether or not to grant the stay and that in light of the overriding objective stipulated in section 1A and 1B of the Civil Procedure Act, the court is no longer limited to the foregoing provisions. The courts are now enjoined to give effect to the overriding objective in the exercise of its powers under the Civil Procedure Act or in the interpretation of any of its provisions: G.N Muema p/a (sic) Mt. View Maternity & Nursing Home vs Miriam Maalim Bishar & Another [2018] e KLR the court stated as follows;
“It was the considered view of this court that substantial loss does not have to be a lot of money. It was sufficient if an applicant seeking a stay of execution demonstrated that it would have to go through hardship such as instituting legal proceedings to recover the decretal sum if paid to the respondent in the event his or her appeal was successful. Failure to recover such decretal sum would render his appeal nugatory if he or she was successful.”
20. He also relies on Absalom Dova vs Tarbo Transporters [2013] e KLR on the balancing of the rights of parties in an application for stay of execution pending appeal.
21. With regard to substantial loss, he relies on James Wangalwa vs Agnes Naliaka Cheseto [2012] e KLR where it was stated;
“The applicant must establish other factors which show that the execution will create a state or affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal ….. the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
22. It is submitted that in the replying affidavit the respondent does not disclose any ability to refund the decretal sum should the appeal succeed.
23. It is further submitted that he application is brought without delay.
24. With regard to security he relies on Arun C. Sharma vs Ashana Raikundalia t/a Rairundalia & Co. advocates, Nairobi Miscellenous Civil Application No. 802 of 2010, and Khalsa Schools & 2 others vs Samuel Odhiambo Otieno [2021] e KLR wherethe court stated as follows;
“As was stated by Parker LJ in Rosengren vs Safe Deposit Centres Ltd (1984) E ALL ER 198 which has been quoted widely with approval in many cases in Kenya, security for the due performance of a decree ought to be given in a way that is least disadvantageous to the party giving security and may be in many forms including a bank guarantee. What is important is that it must be adequate and binding.”
25. The respondent vide submissions dated 21/5/2024 – set out the factual background to the auxiliary suit, and the orders issued by the subordinate court. It is submitted that an appeal against the said judgment ought to have been filed or before the 19/1/2023. It is not on record that the applicants ever instructed their advocates to challenge the said judgment;The said auxiliary suit was filed on 26/4/2023 (when the time for lodging any intended appeal had long lapsed) the said auxiliary suit was against the applicant’s insurer. A perusal of the plaint in the auxiliary suit (see annexture at page 12-15 of the applicants’ annextures) and the Witness Statement therein (see annexture at page 18-20 of the applicants’ annextures) is clear that the auxiliary suit was intended to a compel the applicants’ insurer to honour and satisfy the judgment in the said suit. The auxiliary suit has no averment whatsoever that the finding on liability in the said suit was wrong or that the quantum of damages was inordinately high. The applicants cannot therefore be heard to say that they mistook the auxiliary suit for an appeal. Further and as above stated, there is no evidence or allegation whatsoever that the applicants ever gave instructions to their then advocates to appeal against the said judgment. If the said auxiliary suit there, by any stretch of imagination, to have been mistaken for an appeal then the same (the auxiliary suit) ought to have been filed within thirty (30) days from the date of the said judgment; that the applicants were ordered by the subordinate to deposit half of the decretal sum in a joint interest earning account by 15/2/2024 (see paragraph 4 of the supporting affidavit as w ell as paragraph 6 of the replying affidavit). The application herein was filed on 9/2/2024 and was clearly triggered by the approaching deadline of 15/2/2024 for the compliance with the said orders of the subordinate court. The applicants have not disputed the averments contained in paragraph 6 of the replying affidavit. The applicants are silent on the fact that they were ordered by the subordinate court to deposit security and the application herein was clearly an afterthought and is meant to secure interim orders beyond the deadline set by the subordinate court, a classic case of abuse of court processes.
26. It is submitted that the applicant having failed to comply with orders of the subordinate court related to stay of execution cannot be heard. The applicant has remained silent on this issue and only brought this application to beat the deadline that was given by the subordinate court to deposit half the decretal sum in a joint interest earning account.
27. With regard to the alleged mistake of counsel – it is submitted that the applicant was aware that what was filed was not an appeal. There is nothing in their affidavit to show that they had given instructions to their advocates to file an appeal – which instructions they ignore – it is clear that the suit was to compel the insurer to satisfy the judgment and not an intended appeal.
28. The submissions on the inability of the applicant to repay are not supported by a pleading hence it is argued that they ought to be rejected.
29. The respondent relies on: Siaya Hc.Misc.Civil Case No. E041 of 2021 Joseph Odide Walome vs David Mbadi Akello (2022) e KLR where the court found a delay of about 8 months to be inordinate. Further, the court, relying on the Court of Appeal decision in Tana & Athi Rivers Development Authority vs Jeremiah Kimigho Mwakio & 3 Others (2015 e KLR held that:
“While mere negligent mistake by counsel may be counsel may be excusable, the situation is vastly different in cases where a litigant knowingly and wittingly condones such negligence or where the litigant himself exhibits a careless attitude … while the mistake of counsel was excusable, if it is accompanied by a litigant’s carelessness and inactivity, then the refusal by court to exercise discretion in favour of such a party cannot be impugned … I find the application for extension of time an afterthought and an attempt to frustrate the respondent decree holder from enjoying the fruits of a lawful judgment. Justice cannot be served if the courts were to go forward one step and turn back ten steps in favour of an indolent litigant who does not want to settle decree……..”
30. I have carefully considered the pleadings and the submissions of both counsel – it is evident that the only issue is whether the application is tenable.
31. It emerges from the application that the applicant was aware that what was filed was not an appeal .and that for the period that the matter was going on in the subordinate court It was clear that it was not an appeal .that what was going on was a suit against the insurance company to compel them to make good the decree .So then the appellant applicant cannot be heard on that ground .
32. Was there mistake of counsel? there was no mistake. a suit was filed and the suit was prosecuted and there was an outcome of that suit and from there it does emerge that this suit was filed at the point where the appellant applicant was required to comply with the orders of the subordinate court
33. There is no evidence presented before this court but the appellant had instructed their previous advocates on record to file an appeal and they proceeded to act contrary to their instructions. Hence the appellant’s submission that a litigant ought not to bear the consequences of the advocate’s default unless the litigant is privy to the default and results from failure on the part of the litigant to give the advocate due instructions applies to the appellant because it was upon the appellant applicant to establish before this court that they had given instructions to their counsel to file an appeal which instructions their counsel ignored. The explanation given for the delay is not satisfactory.
34. Having found that the delay is inordinate and is not explained satisfactorily then the issue of stay would not arise.
35. The application is dismissed with costs.
Dated signed and delivered via this 28th March 2025
Mumbua T Matheka
Judge