[1] The Notice of Motion dated 14th October 2024 was filed by the applicant, John Jerry Owino, pursuant to Sections 3A, 79G and 95 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya; Order 22 Rule 22, Order 42 Rule 6, and Order 51 Rule 1 of the Civil Procedure Rules. The applicant thereby prayed for orders that:
[a] Spent
[b] Spent
[c] That the Court be pleased to grant leave to the applicant to appeal out of time against the judgment of Hon. C. Chepkoech, Resident Magistrate, in Oyugis Chief Magistrate’s Civil Case No. E061 of 2022 delivered on 5th September 2024.
[e] That the Court be pleased to stay execution of the judgment and decree in Oyugis CMCCC No. E061 of 2022 delivered on 5th September 2024 pending the hearing and determination of the intended appeal.
[f] That the Court be pleased to order that the decretal sum of Kshs. 1,355,140/= be secured by way of bank guarantee pending the hearing and determination of the intended appeal.
[h] That the costs of the application to abide the outcome of the intended appeal.
[2] The application was premised on the grounds that judgment was delivered on 5th September 2024; and that the applicant was unable to get a copy thereof until 10th October 2024, by which time the appeal period had lapsed. The applicant further averred that he is aggrieved by the judgment and wishes to appeal; hence the application for leave to appeal out of time.
[3] The grounds aforestated were elaborated on in the applicant’s Supporting Affidavit sworn on 14th October 2024. The applicant explained that failure to file his appeal within time was due to the fact that the file was not released by the trial court until the 10th October 2024. He posited that no prejudice will be suffered by the respondent granted that he is ready, willing and able to furnish security by way of a bank guarantee for the whole of the decretal sum. The applicant annexed to his Supporting Affidavit a copy of the Memorandum of Appeal and the bank guarantee to buttress his averments.
[4] The applicant also relied on the affidavit of Ms. Effie Otieno, sworn on 14th October 2024. She averred that, although the impugned judgment was delivered on 5th September 2024, the applicant’s counsel was unable to obtain a copy until 10th October 2024, five weeks after the delivery. She underscored the fact that, by that time, the appeal period had already lapsed; and that the delay was due to no fault on the part of the applicant. Counsel further averred that the appeal is arguable and raises pertinent points of law for consideration by the Court.
[5] The respondent opposed the application. He relied on the Replying Affidavit sworn on 3rd December 2024 by Mr. Charles Ogaro Orayo, Advocate. Notably, counsel averred that the respondent is agreeable to the application on condition that acceptable security is furnished in accordance with Rule 6(2) of Order 42, Civil Procedure Rules. Accordingly, at paragraph 6 of the Replying Affidavit, counsel drew the attention of the Court to the variance in the proposed security in that the applicant agreed to deposit the decretal sum in court but then annexed a copy of a General Bank Guarantee instead. On that account, counsel averred that the security offered is inappropriate.
[6] Directions were thereafter given on 16th December 2024 that the application be canvassed by way of written submissions. Accordingly, the applicant filed written submissions dated 22nd January 2025. He relied on Section 79G of the Civil Procedure Act as well as Order 42 Rule 6 of the Civil Procedure Rules and the cases of Edith Gichugu Koine v Stephen Njagi Thoithi [2014] eKLR and Julius Kamau Kithaka v Waruguru Kithaka Nyaga & 2 others Civil Appeal No. 14 of 2013. The applicant proposed the following issues for determination:
[a] Whether the delay was unreasonable;
[b] The reasons given for the delay;
[c] Whether the respondent will be prejudiced if the application is granted;
[d] Whether the appeal has chances of success.
[7] The applicant submitted that, although the judgment was delivered on 5th September 2024, he was unable to get a copy since the same was neither uploaded in the Case Tracking System (CTS) nor was the file released from the magistrate’s chambers in time. He accordingly urged that Court to note that the application was filed within days of release of a copy of the judgment. The applicant pointed out that, in Veronica Gathoni Mwangi & another v Samuel Kagwi Ngure & another [2016] eKLR a delay of 3 months was excused.
[8] In the same vein, the applicant urged the Court to find that the reason given for the delay is plausible and therefore excusable; and that no prejudice will be suffered by the respondent in the event that the orders sought are granted. In addition to the bank guarantee he offered as security, the applicant submitted that the respondent can be assuaged by an award of costs. He relied on Samuel Mwaura Muthumbi v Josephine Wanjiru Ngugi & another [2018] eKLR and Selestical Lmited v Global Rock Development [2015] eKLR to back up his assertions.
[9] On whether the appeal has chances of success, the applicant submitted that the subject accident was not self-involving; and therefore there was no basis for the trial court to attribute liability on the applicant’s driver at 100%. He further submitted that the respondent did not prove particulars of injuries, earnings or future medical expenses; and therefore that the award was erroneously made. In his view, the intended appeal has high chances of success. He relied on Athman Nusura Juma v Afwa Mohamed Ramadhan, Civil Appeal No. 227 of 2015 in this regard and prayed that his application dated 14th October 2024 be allowed.
[10] On his part, the respondent relied on his written submissions dated 24th January 2025. He pointed out that he was only opposed to the limb of security as proposed on the ground that, at paragraph 14 of the Supporting Affidavit, the applicant offered to deposit the entire decretal sum in court as security for the due performance of any orders that the Court may ultimately make against him in the appeal; but instead annexed a copy of a General Bank Guarantee.
[11] It was the respondent’s submission that the security being provided by the applicant in terms of a General Bank Guarantee is insufficient and does not meet the requirements of Order 42 Rule 6 of the Civil Procedure Rules, granted that:
[a] The Bank Guarantee is not in respect of and does not refer to the respondent’s case herein;
[b] The Bank Guarantee is expressed to commence on 6th July 2023 and was to last for a period of 12 months with no evidence that it had been renewed.
[12] Thus, it was the submission of the respondent that, despite the applicant having been put on notice about the insufficiency of the Bank Guarantee as security, he never filed a Supplementary Affidavit providing an alternative form of security. He urged that the Court to deduce that the applicant is not keen on providing security, which is a condition precedent to the grant of the orders sought.
[13] The respondent further submitted that he has a regularly obtained judgment in his favour, and that the instant application is nothing but a delaying tactic aimed at denying him the realization of the fruits of his litigation. He urged for the dismissal of the application but proposed that, should the Court be inclined to allow it, then it should be on terms that the entire decretal sum be deposited in a joint interest earning account in the names of the Advocates for both parties.
[14] The Court has given careful consideration to the application, the rival affidavits filed in respect of the subject application as well as the submissions made on behalf of the parties. Section 79G of the Civil Procedure Act is explicit that an appeal from the subordinate court to the High Court be filed within 30 days; failing which leave of the Court ought to be obtained to admit the appeal out of time. It states 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.
[15] The above section requires that before one can be allowed to file an appeal out of time, one must demonstrate “good and sufficient cause” for not filing the appeal in time. The Court of Appeal had occasion to underscore this principle in the case of Paul Musili Wambua v Attorney General & 2 others [2015] eKLR. Here is what it had to say:
“…it is now well 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 whims or caprice. In general the matters which a court takes into account in deciding whether to grant an extension of time are; the length of the 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. (See MUTISO V MWANGI) [1999] 2 EA 231.”
[16] And, in the case of County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR the Supreme Court restated the applicable principles thus:
“…It is trite law that in an application for extension of time, the whole period of delay should be declared and explained satisfactorily to the Court. Further, this Court has settled the principles that are to guide it in the exercise of its discretion to extend time in the Nicholas Salat case to which all the parties herein have relied upon. The Court delineated the following as:
“the under-lying principles that a Court should consider in exercise of such discretion:
1. 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;
2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
5. Whether there will be any prejudice suffered by the respondents if the extension is granted;
6.Whether the application has been brought without undue delay;”
[17] The judgment that the applicant seeks to challenge was delivered on 5th September 2024 hence the 30 days’ period within which the applicant was to file a memorandum of appeal lapsed on or about 4th October 2024. The present application having been filed on 14th October 2024, was therefore filed after a delay of about 10 days. The applicant has explained the cause of the delay and stated that he was unable to get a copy of the judgment in time.
[18] That explanation was not challenged. Indeed, the respondent made it clear in his submissions that his objection was limited to the form of security offered by the applicant. It is therefore my finding that the delay was not inordinate in the circumstances; and that it has been sufficiently explained. As was stated in Ivita v Kyumbu [1975] eKLR thus:
“...the test is whether the delay is prolonged and inexcusable, and, if it is, can justice be done despite such delay…”
[19] From the information provided herein, it can be discerned that the case was a personal injury claim whereby the trial court found the applicant liable. A perusal of the draft Memorandum of Appeal annexed to the Supporting Affidavit shows that the issues raised therein are prima facie arguable; and therefore worthy of consideration on appeal. Needless to say that an arguable appeal is not one which must necessarily succeed; and that at this stage, the Court need not go into the merits of the appeal. In the case of Vishva Stone Suppliers Company Limited v RSR Stone [2006] Limited [2020] eKLR the Court held: -
“…Court can gauge the arguability of an intended appeal from other supportive evidence. Herein the applicant intends to challenge the dismissal of its liquidated claim which according to counsel involves a colossal amount of money. In my view, that in itself is arguable notwithstanding that it may not succeed as in law an arguable appeal need not succeed so long as it raises a bona fide issue for determination by the Court. In my view, the issue of whether the applicant's claim was meritorious or otherwise is arguable notwithstanding that it may not succeed...”
[20] It is my finding, therefore, that there appears to be arguable points of law, for instance on the question of whether or not the trial court erred in law and fact by awarding damages for loss of earnings/diminished earning capacity without basis while no such claim was specifically pleaded in the body of the Plaint or proved by the respondent at the trial.
The applicant also raised the question whether the trial court failed to appreciate the relevant provisions of the Insurance (Motor Vehicle Third Party Risks) (Amendment) Act, 2013. Moreover, the respondent did not demonstrate that he stands to suffer such prejudice as may not be compensable by an award of costs.
[21] I am therefore convinced that this is a proper and fit case in which the Court ought to exercise its discretion in favour of the applicant by allowing his application for leave to appeal out of time.
[22] Although the respondent questioned the applicant’s proposal in terms of security, a perusal of paragraph 14 of the applicant’s affidavit does not seem to support the respondent’s assertions. In fact, nowhere in the applicant’s affidavit did he propose to deposit the entire decretal sum in court as security. His proposal, at paragraph 10 of his Supporting Affidavit, was to furnish security by providing a bank guarantee for the whole of the decretal sum of Kshs. 1,355,140/=.
[23] In the result, and for the reasons set out herein above, it is hereby ordered, in respect of the application dated 14th October 2024, as hereunder:
[a] That leave be and is hereby granted to the applicant to appeal out of time against the judgment of Hon. C. Chepkoech, Resident Magistrate, in Oyugis Chief Magistrate’s Civil Case No. E061 of 2022 delivered on 5th September 2024.
[b] That the intended appeal be filed within 30 days from the date hereof.
[c] That an order of stay execution of the judgment and decree in Oyugis CMCCC No. E061 of 2022 delivered on 5th September 2024 be and is hereby granted pending the hearing and determination of the intended appeal.
[d] That the decretal sum of Kshs. 1,355,140/= shall be secured by way of a Bank Guarantee pending the hearing and determination of the intended appeal. The same to be furnished within 30 days from the date hereof.
[e] That the costs of the application to abide the outcome of the intended appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 25TH DAY OF FEBRUARY 2025