HENRY MONGARE BASWETI AND JOB OGETO AIRISI VS CHARLES KIMORI MONGARE

1. This ruling is in respect to the Application dated 11^th May 2024 wherein the Applicants seek the following Orders: -
2. SPENT
3. THAT pending the hearing and determination of this Application inter-partes there be a stay of the Ruling and/or Order of the Honourable Lady Justice W.A. Okwany issued herein on 11^th April 2024 requiring the Applicants to pay the claimant half of the judgment sum, that is Kshs. 1,376,425/= and the other half (Kshs. 1,376,425) to be deposited in court within 30 days and in default, execution to issue.
4. THAT pending the hearing and determination of this Application inter-partes, an order of stay of execution of the judgment delivered on 12^th October 2023 in Nyamira Civil Suit No. E003 of 2022- Charles Kimori Mong’are vs. Henry Mong’are Basweti & Job Ogeto Arisi be and is hereby issued.
5. THAT the period granted for paying half decretal amount of Kshs. 1,376,425/= be hereby enlarged and/or extended to enable the Applicant to eventually prosecute and finalize the Appeal.
6. THAT this honourable Court do make any such further orders and issue any other relief it may deem just to grant in the interests of justice.
7. THAT the costs of this Application be in the cause.
8. The Application is brought under Order 50 Rule 6, Order 51 Rule 1 of the Civil Procedure Rule and is supported by the affidavit of the Applicant’s advocate Ms. Evelyne Okwoyo. The Applicants’ case is that they have been unable to comply with the stay of execution conditions granted by this court due to financial constraints as their insurer has been awaiting certain approvals.
9. The Respondent opposed the Application through the Replying Affidavit dated 3^rd June 2024 wherein he avers that the accident left him with a serious physical disability and that the payment of half of the decretal amount could alleviate his situation as he awaits the outcome of the Appeal. He further avers that the extended timelines sought in the present Application were not defined. It is the Respondent’s case that the Applicants’ intention is to scuttle his right to enjoy the fruits of his judgment.
10. The Application was canvassed through written submissions which I have considered.
11. The main issue for my determination is whether the Applicants have made out a case for an extension of time to comply with the stay of execution orders issued on 11^th April 2024.

Analysis and Determination

1. The Court of Appeal outlined factors to be considered in an application for extension of time in the case of Edith Gichugu Koine vs. Stephen Njagi Thoithi [2014] eKLR as follows: -
2. the period of delay,
3. the reasons for the delay,
4. the degree of prejudice to the respondent if the application is granted, and
5. whether the matter raises issues of public importance, amongst others....
6. In the said case, the court (Odek JA) went on to state that:-

“There is also a duty now imposed on courts to ensure that the factors considered are in consonance with the overriding objective of civil litigation, that is to say, the just, expeditious, proportionate and affordable resolution of disputes before the court.”

1. Similarly, in Lunat vs. Patel and Another (142 of 2021) [2021] ZWHHC 142 (8 November 2021) the High Court in Harare cited the decision by their Supreme Court, Zimslate Quartize (Pvt) Ltd & Others vs. Central African Building Society SC 34/17 where at para 17 it remarked:-

“An applicant, who has infringed the rules of the court before which he appears, must apply for condonation and in that application explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought. An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”

1. It is against the backdrop of the above cited cases that I have considered the reasons advanced by the Applicant for his inability to comply with the stay of execution conditions granted by this court. I note that this Court granted the said orders on 11^th April 2024 and required compliance within 30 days. While it is possible that the Applicants’ insurance company’s policies may require numerous approvals when disbursing funds thereby causing delays, it is not lost on this Court that when it allowed the prayer for stay of execution pending appeal, it duly balanced the Applicants’ right to appeal against the Respondent’s right to enjoy the fruits of his judgment and ordered that half of the decretal amount to be paid to the Respondent.
2. I note that failure, by the Applicant, to comply with court’s orders has greatly prejudiced the Respondent who averred that he had to undergo another surgery on 26^th June 2024 with meagre resources so as to treat his swelling leg. I also find that it is a sheer display of bad faith, on the part of the Applicants, to have waited until the expiry of the 30 days stay window period of compliance before filing the present Application. It would have been prudent for the Applicants to approach the Court early enough to seek enlargement of time.
3. I note that the Applicants now seek a further 21 days, from the date of the expiry of the initial order being 11^th May 2024, to enable them comply while this Application was admitted for hearing on 22^nd May 2024. I have considered the time that it has taken for the Application to be heard and the date slated for its determination. To state the obvious, this period is longer than the period that the Applicants have requested for to comply with the Court’s earlier orders. This means that by the time of delivering this Ruling, the Applicants should have complied with the stay conditions if they were genuine in their prayer for a further 21 days, from the date of lapse of the earlier orders.  I note that it is now over 5 months since the initial stay orders were issued and find that if indeed the Applicant’s Insurer was committed to settling the decretal sum, then they ought to have done so by now.
4. It however appears that the Applicants and their insurer are taking this court’s orders for granted by not only failing to comply with the said orders, but also seeking further orders without offering any plausible reasons for their non-compliance. It is also my finding that the delay in filing the instant application was inordinate. I am also cognizant of the plight of the Respondent who was the successful litigant before the trial court.
5. My conclusion I find that the present Application is not merited and I therefore dismiss it with costs to the Respondent.
6. It is so ordered.

Ruling dated, signed and delivered at Nyamira virtually via Microsoft Teams this 3^rd October 2024.

In the Presence of: -

Keya for the Respondent

Ms. Moraa for Ms. Okwoyo for the Appellant/Applicant

C/A – Anita