1. The applicant filed the motion dated 30.4.24 seeking leave to file appeal out of time and stay of execution pending the intended appeal against judgment of Hon P.K Mutai (P.M ) in CMCC No 1073 of 2022 dated 13.12.23 .
2. The application is based on the ground that there was a communication break down between the applicant’s insurer and It’s counsel , that applicant was aggrieved by the judgment and intends to appeal against. Also that execution is imminent as there are no stay orders . Further that there is no inordinate delay in bringing the application and that no prejudice would be occasioned to the respondent . That is in the interest of justice that the application be allowed .
3. The application is based on the annexed affidavit of Ruth Mbalelo a legal officer at APA Insurance dated 30.4.24 . She told this court that they learnt of the Judgment herein on 29.4.24 when their counsel on record Mr Otieno called them on a follow up of the payment of decretal sum herein.
4. Further that there was communication break down between them and the said counsel over this matter and that they were aggrieved by the Judgment and they seek to appeal against it . She annexed a draft memorandum of appeal which challenges both liability and quantum –‘’RM1’’.
5. She said they are ready to comply with orders on security including deposit of the entire decretal sum in court or in a joint interest earning account the joint names of both counsel on record herein.
6. Ruth also deponed that there was no inordinate delay in mounting the application and that the respondent will not suffer any prejudice if the orders are granted.
7. Benard Omari Nyachio the respondent herein filed the replying affidavit dated 30.5.24 , he vehemently opposed the application saying it is a delaying tactic meant to deny him the fruits of the judgment as the application has been filed 5 months after the judgment which was delivered on 13.12.23 and 30 days stay of execution was granted and the same lapsed .
8. He said the applicant has not given any reasonable cause for failure to satisfy the decree since it was passed and he termed the application as incurably defective , bad in law , incompetent and an abuse of the process of the court .
9. The application proceeded by way of submissions and both parties filed the same .
10. It is trite law the grant of extension of time to appeal and stay pending appeal are discretionary .
11. I have carefully considered the application the reply and the able submissions filed by both parties herein. The issues arising for determination are ;
a) whether the applicant has met conditions for leave to appeal out of time .
b) Whether the Applicants have satisfied the conditions for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules.
DISPOSITION OF THE ISSUES
12. On whether the applicant has met conditions for grant of leave to appeal out of time;-Section 79G of the Civil Procedure Act states:-
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 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.
13. It is clear from the wording of section 79G of the Civil Procedure Act that before the court considers extension of time, the applicant must satisfy the court that that he has good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited vs William Muthama Kitonyi [2018]eKLR where it was emphasized that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.
14. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR outlined the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-
“The underlying principles a court should consider in exercise of such discretion should include:-
a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. Whether there will be any prejudice suffered by the respondent if the extension is granted;
f. Whether the application has been brought without undue delay.
15. Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:-
“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
16. Applying the above principles to the present case, the judgment herein was delivered on 13.12.24. The applicant has attributed the delay in filing his appeal was communication break down between his insurer and his advocate
17. The Court of Appeal in the case of Ngoso General Contractors Ltd. vs. Jacob Gichunge Civil Appeal No. 248 of 2001 [2005] 1 KLR 737 that:
“The failure by the Superior Court Judge in an application for extension of time to file an appeal, to consider, as a matter of law, whether the Appellant, who was admittedly absent when the Judgement was delivered, was served with notice of delivery of the Judgement was a misdirection…The law under Order 20 r 1 is explicit in terms and mandatory in tone that a Judgement which is not delivered ex tempore must be delivered on a subsequent date only upon notice being given to all parties or their advocates and where only the successful party in the Judgement had prior knowledge of the delivery of the Judgement and no apparent reason was advanced for the failure to serve or to attempt to serve the Appellant or his advocate, the Appellant’s right of appeal was grossly compromised…An order was made by the Magistrate granting a right of appeal within 28 days and directing the party in attendance to inform the other side does not cure the flagrant breach of the mandatory procedural rule which accords with fundamental rules of natural justice and the right to be heard which the Constitution safeguards.”
18. It is not disputed that delay in filing the appeal herein was for 5 months as the judgment was delivered on 13.12.24 and the application was filed on 30.4.24 . The reason for the delay is said to be a communication break down between the advocate and the insurer. The applicant say the delay is not inordinate but the respondent but the respondent said that the delay has not been sufficiently explained and he terms it a delaying tactic . Though mistake of counsel should not be visited upon his innocent client, the applicant and the insurer also had a duty to ensure that the appeal was filed within time . The delay of 5 months is definitely inordinate by all standards and the applicant and he insurer had a duty to follow up the matter and ensure that the appeal was filed within time or the decree satisfied in a timely manner . The respondent being a decree holder will be prejudiced if the prayer for leave to file the intended appeal out of time is allowed after the inordinate delay as he will be denied of the fruit of his Judgment . I Disallow the said prayer for leave to appeal out of time.
19. On the issue of stay pending appeal, since I have not allowed the prayer for leave to appeal out of time then it does not arise.
20 . In the upshot I find that the application dated 30.4.25 is not merited and I proceed to dismiss it with costs .
T.A ODERA
JUDGE
9.4.25
Delivered Virtually via teams Platform in the presence of Court assistant Oigo No appearance for parties .
T.A ODERA
JUDGE
9.4.25
2. The application is based on the ground that there was a communication break down between the applicant’s insurer and It’s counsel , that applicant was aggrieved by the judgment and intends to appeal against. Also that execution is imminent as there are no stay orders . Further that there is no inordinate delay in bringing the application and that no prejudice would be occasioned to the respondent . That is in the interest of justice that the application be allowed .
3. The application is based on the annexed affidavit of Ruth Mbalelo a legal officer at APA Insurance dated 30.4.24 . She told this court that they learnt of the Judgment herein on 29.4.24 when their counsel on record Mr Otieno called them on a follow up of the payment of decretal sum herein.
4. Further that there was communication break down between them and the said counsel over this matter and that they were aggrieved by the Judgment and they seek to appeal against it . She annexed a draft memorandum of appeal which challenges both liability and quantum –‘’RM1’’.
5. She said they are ready to comply with orders on security including deposit of the entire decretal sum in court or in a joint interest earning account the joint names of both counsel on record herein.
6. Ruth also deponed that there was no inordinate delay in mounting the application and that the respondent will not suffer any prejudice if the orders are granted.
7. Benard Omari Nyachio the respondent herein filed the replying affidavit dated 30.5.24 , he vehemently opposed the application saying it is a delaying tactic meant to deny him the fruits of the judgment as the application has been filed 5 months after the judgment which was delivered on 13.12.23 and 30 days stay of execution was granted and the same lapsed .
8. He said the applicant has not given any reasonable cause for failure to satisfy the decree since it was passed and he termed the application as incurably defective , bad in law , incompetent and an abuse of the process of the court .
9. The application proceeded by way of submissions and both parties filed the same .
10. It is trite law the grant of extension of time to appeal and stay pending appeal are discretionary .
11. I have carefully considered the application the reply and the able submissions filed by both parties herein. The issues arising for determination are ;
a) whether the applicant has met conditions for leave to appeal out of time .
b) Whether the Applicants have satisfied the conditions for grant of stay of execution under Order 42 Rule 6 of the Civil Procedure Rules.
DISPOSITION OF THE ISSUES
12. On whether the applicant has met conditions for grant of leave to appeal out of time;-Section 79G of the Civil Procedure Act states:-
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 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.
13. It is clear from the wording of section 79G of the Civil Procedure Act that before the court considers extension of time, the applicant must satisfy the court that that he has good and sufficient cause for filing the appeal out of time. This principle was enunciated in the case of Diplack Kenya Limited vs William Muthama Kitonyi [2018]eKLR where it was emphasized that an applicant seeking enlargement of time to file an appeal or admission of an already filed appeal must show that he has a good cause for doing so.
14. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR outlined the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:-
“The underlying principles a court should consider in exercise of such discretion should include:-
a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;
d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. Whether there will be any prejudice suffered by the respondent if the extension is granted;
f. Whether the application has been brought without undue delay.
15. Similarly in the case of Paul Musili Wambua vs Attorney General & 2 Others [2015] eKLR, the Court of Appeal in considering an application for extension of time and leave to file the Notice of Appeal out of time stated the following:-
“…….it is now settled by a long line of authorities by this court that the decision of whether or not to extend the time for filing an appeal the Judge exercises unfettered discretion. However, in the exercise of such discretion, the court must act upon reason(s) not based on whim or caprice. In general the matters which a court takes into account in deciding whether or not to grant an extension of time are; the length of delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted.”
16. Applying the above principles to the present case, the judgment herein was delivered on 13.12.24. The applicant has attributed the delay in filing his appeal was communication break down between his insurer and his advocate
17. The Court of Appeal in the case of Ngoso General Contractors Ltd. vs. Jacob Gichunge Civil Appeal No. 248 of 2001 [2005] 1 KLR 737 that:
“The failure by the Superior Court Judge in an application for extension of time to file an appeal, to consider, as a matter of law, whether the Appellant, who was admittedly absent when the Judgement was delivered, was served with notice of delivery of the Judgement was a misdirection…The law under Order 20 r 1 is explicit in terms and mandatory in tone that a Judgement which is not delivered ex tempore must be delivered on a subsequent date only upon notice being given to all parties or their advocates and where only the successful party in the Judgement had prior knowledge of the delivery of the Judgement and no apparent reason was advanced for the failure to serve or to attempt to serve the Appellant or his advocate, the Appellant’s right of appeal was grossly compromised…An order was made by the Magistrate granting a right of appeal within 28 days and directing the party in attendance to inform the other side does not cure the flagrant breach of the mandatory procedural rule which accords with fundamental rules of natural justice and the right to be heard which the Constitution safeguards.”
18. It is not disputed that delay in filing the appeal herein was for 5 months as the judgment was delivered on 13.12.24 and the application was filed on 30.4.24 . The reason for the delay is said to be a communication break down between the advocate and the insurer. The applicant say the delay is not inordinate but the respondent but the respondent said that the delay has not been sufficiently explained and he terms it a delaying tactic . Though mistake of counsel should not be visited upon his innocent client, the applicant and the insurer also had a duty to ensure that the appeal was filed within time . The delay of 5 months is definitely inordinate by all standards and the applicant and he insurer had a duty to follow up the matter and ensure that the appeal was filed within time or the decree satisfied in a timely manner . The respondent being a decree holder will be prejudiced if the prayer for leave to file the intended appeal out of time is allowed after the inordinate delay as he will be denied of the fruit of his Judgment . I Disallow the said prayer for leave to appeal out of time.
19. On the issue of stay pending appeal, since I have not allowed the prayer for leave to appeal out of time then it does not arise.
20 . In the upshot I find that the application dated 30.4.25 is not merited and I proceed to dismiss it with costs .
T.A ODERA
JUDGE
9.4.25
Delivered Virtually via teams Platform in the presence of Court assistant Oigo No appearance for parties .
T.A ODERA
JUDGE
9.4.25