1. The application for determination is dated 23/10/2023. It was filed under certificate of urgency and is brought under Order 22 Rule 22, Order 42 Rule 6, Order 50 Rule 6, Order 51 Rules 1 & 3 of the Civil Procedure Rules 2010, Sections 3A, 79G of the Civil Procedure Act, Article 159 (2) (a) & (d) of the Constitution of Kenya and all other enabling provisions of the law. It seeks the following orders;
a) Spent.
b) Spent
c) THAT this honorable Court be pleased to grant leave to the Applicant to lodge an Appeal and file a Memorandum of Appeal out of time against the judgment and decree of the Honorable JD Karani against the Applicant on 21/06/2023 in Makindu CMCC No. E083 of 2020.
d) THAT this Honorable court be pleased to order stay of execution of the judgment and/or decree issued by Honorable JD Karani against the Applicant on 21/06/2023 pending the hearing and determination of this application.
e) THAT this Honorable court be pleased to order stay of execution of the judgment and/or decree issued by Honorable JD Karani against the Applicant on 21/06/2023 pending the hearing and determination of the intended appeal.
f) THAT this Honorable court allows the Applicant’s security to the court be in form of bank guarantee from Family Bank.
2. The application is supported by the grounds on its face and the Affidavit of the Applicant sworn on the same day. The Applicant deponed that the delay in filing the appeal was occasioned by the need for communication between him and his Advocate in order to ascertain the options available. That by the time he got back to his Advocates in regard to their opinion, the time within which to appeal had expired. That he is informed by his Advocates, which information he verily believes to be true that the quantum awarded is too high compared to the injuries suffered. A copy of the judgment and draft memorandum of Appeal are exhibited as JNG 1 & 2 respectively.
3. He deponed that further information from his Advocate is that the Respondent may levy execution and render the appeal nugatory hence causing irreparable loss to him. That if the decretal amount is paid, the Respondent would be in no position to refund if the appeal is successful. That the Respondent has not disclosed or furnished the court with any documentary evidence of his financial standing. That his insurer, Directline Assurance Company is ready, willing and able to furnish the court with a Bank guarantee from Family Bank as security. A copy of the Bank Guarantee is exhibited as JNG 3.
4. He deponed that the application is made in good faith and will not occasion any prejudice to the Respondent.
5. The application is opposed through the Respondent’s Replying Affidavit sworn on 31/10/2023. He deponed that the advice from his counsel is that the delay is not explained well, is inexcusable and should be disregarded. That the application for stay is premature as his counsel is yet to extract a decree for execution. That the intended appeal lacks merit as the trial court correctly directed itself on merit.
6. Further, he deponed that he is entitled to the fruits of the judgment and that the Applicants have not proved how they will suffer irreparable loss if the decretal amount is paid. That if the Court is inclined to allow the application, it should direct the Applicants to deposit half of the decretal sum, as security, to his counsel and deposit the other half in a joint interest-earning account held in the name of both firms of Advocates on record for the parties.
7. The application was canvassed through written submissions.
The Applicants’ Submissions
8. The Applicants acknowledged that the decision on extension of time is discretionary and submitted that the considerations to be made elaborated by the Supreme Court of Kenya in County Executive of Kisumu -vs- County Government of Kisumu & Others (2017) eKLR as follows; extension of time is an equitable remedy that is only available to a deserving party, basis must be laid to the satisfaction of the court, the court will exercise discretion on a case to case basis, delay should be explained to the satisfaction of court and whether the Respondent will suffer prejudice.
9. He submitted that the unforeseeable challenge and circumstance that led to the delay should not be visited on an innocent litigant and relied on Charles N. Ngugi -vs- ASL Credit Ltd [2022] eKLR where the court found that a delay of two months was not inordinate.
10. He submitted that he will suffer prejudice if the prayer for stay is not granted as his property will be attached and sold. That the appeal which has high chances of success will be rendered nugatory. That the judgment is of a substantial amount and he is apprehensive that he may not recover the amount from the Respondents. That he is willing to offer a Bank Guarantee from a reputable Bank which is an indication that he is willing to satisfy the conditions of stay. He relied on Charles N. Ngugi (supra) where the court stated;
“I am satisfied that execution of the decree will cause the applicant substantial loss. Even if the respondent is capable of refunding the money, the court has to consider whether it is fair to allow execution to continue which process will naturally cause the applicant some financial burden.”
11. The Applicant also relied on the case of Bernard Ontita Zebedeo -vs- Julius Nyamwega Ontere [2022] eKLR where the court held;
“Consequently, an order for stay of execution pending appeal is granted on condition that the appellant provides a bank guarantee from a reputable bank as security for the decretal sum pending the hearing and determination of the appeal. In default, the stay order shall automatically lapse.”
The Respondent’s Submissions
12. The Respondent identified the issues for determination to be;
a. Whether the court ought to allow the Appellants file an appeal out of time.
b. Whether the court ought to allow the prayer for stay of execution and, if so, under what conditions.
13. He submitted that the decision whether to grant leave to appeal out of time is an exercise of discretion and that some of the factors to be considered by courts in exercising the discretion were suggested by the Court of Appeal in Thuita Mwangi -vs- Kenya Airways Ltd [2003] eKLR. They include; the period of, and reason for, the delay, arguability of the appeal, degree of prejudice which the Respondent could suffer if the extension is granted, importance of compliance with time limits to the particular litigation or issue; and effect if any on the administration of justice or public interest if any is involved.
14. He submitted that the delay in this case is two months and the reason given for the delay is not backed by evidence. That in Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral and Boundaries Commission & 7 others {2014} eKLR the Supreme Court of Kenya stated that delay should be explained to the satisfaction of the court. He contended that the Applicants have not surrendered, to this court, the communication trail between them and their Advocates to back their reason and that can only be interpreted to mean that they had no valid reason for the delay.
15. As to whether the prayer for stay of execution should be granted, he relied on Order 42 of the Civil Procedure Rules and Vishram Ravji Halai -vs- Thornton & Turpin Civil Application No. Nai. 15 of 1990 [1990] KLR 365 for the submission that the conditions to be fulfilled are; establishment of a sufficient cause, satisfaction of substantial loss and furnishing of security. He submitted that the court ought to balance the scales of justice by ensuring that an appeal is not rendered nugatory while at the same time ensuring that a successful party is not impeded from the enjoyment of the fruits of his judgement.
16. He submitted that the mere fact that the decree holder is not a man of means should not prevent him from enjoying the fruits of his judgment. He relied on Machira T/A Machira & Co Advocates -vs- East African Standard (No 2) [2002] KLR 63 it was held that:
“to be obsessed with the protection of an appellant or intending appellant in total disregard or flitting mention of the so far successful opposite party is to flirt with one party as crocodile tears are shed for the other, contrary to sound principle for the exercise of a judicial discretion. The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law and to prevent abuse of the process of the court.”
17. He submitted that the position of the law still remains that; where the applicant intends to exercise its undoubted right of appeal, and in the event of success, it should not be difficult to get back the money back. Likewise, the respondent who has a decree in his favour should not have difficulties in realizing the decree.
18. He submitted that the bank guarantee offered by the Applicants is not sufficient and relied on Michael Ntouthi Mitheu -vs- Abraham Kivondo Musau [2021] eKLR where the court stated;
“The Bank Guarantee given by Diamond Trust Bank and annexed to the supporting affidavit may not specifically cover the Respondent. However, the Court in fashioning the security is not necessarily bound by what is offered by the Applicants.
Taking all relevant factors into account and in order not to render the intended appeal illusory while at the same time securing the interests of the successful plaintiff I grant a stay of execution of the decree herein on condition that the Applicant pay to the Respondent half of the decretal sum and gives a bankers guarantee to pay the remaining half together with costs and accruing interests from a reputable financial institution specific to this appeal for the whole duration of the appeal. The said conditions to be met within 30 days from the date of this ruling and in default the application shall be deemed to have been dismissed with costs and the Respondent will be at liberty to execute.”
Analysis
19. 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.
20. 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.”
21. 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 grant the orders sought.
22. 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 -vs- Hellen Wangari Mwangi Nai CA 255 of 1997 (UR) 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”.
23. The judgment subject of the appeal was delivered on 21/06/2023 and this application was filed on 23/10/2023, approximately 122 days or 4 months 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 92 days or 3 months.
24. The Applicants explained that the delay was occasioned by the need for communication between them and their Advocate in order to ascertain the available option. The Respondent dismissed the explanation by arguing that the Applicants did not avail the evidence of communication trail. The delay was not explained as there was no evidence of the alleged communication. Hence the period for the delay and the reason for the delay are untenable.
25. Does the applicant have an arguable appeal? This is for the appeal .
26. Will the respondent suffer prejudice if the application is granted? This can be taken care of by the conditions accompanying the leave.
27. What effect would the denial have on the administration of justice? There is the need to uphold the right to an appeal where the circumstances of the case demand.
28. 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.
29. As for substantial loss, the Applicants deponed that the Respondent has not disclosed his financial standing and might not be able to refund the decretal award.
30. The judgment shows that the trial court imposed 100% liability on the Applicants as had been held in another matter to wit; Makindu SPMCC E081 of 2020. It appears that the current case was part of a series. The trial court proceeded to assess general damages of kshs 300,000/= and special damages of kshs 3,250/= making a total of kshs 303,250/=. Courts have repeatedly held that in the event of a successful appeal, the appellant will suffer substantial hardship if he/she has to file another suit to recover the amount already paid.
31. As for security, the Applicants offered a Bank Guarantee from Family Bank and its purpose is indicated as “…for providing security for awards and or costs awarded in various Court cases/claims pending before Court”. The guarantee is dated 06/07/2023 and its duration is indicated to be “12 months with an option to renew”. Evidently, the guarantee has lapsed and the Court was not informed as to whether renewal was done. It is also probable that the guarantee has been used in numerous applications countrywide as I have also encountered it severally.
32. The Bank Guarantee is not appropriate and the prudent thing to do in the circumstances is for the Applicants to release part of the decretal award to the Respondents thus ensuring that the Applicants’ right to pursue an appeal is protected as well as the Respondents’ right to enjoy the fruits of their judgment.
33. In the totality of this matter, I find that the majority of the requirements are complied with and the orders sought are allowed in the following terms:
a. Leave to file the appeal is allowed to be filed within 30 days hereof
b. The stay of execution is granted pending the hearing and determination of the appeal
c. The condition for (a) and (b) is that the applicant to pay the respondent 50% of the decretal sum and the balance be deposited in court or in a joint interest earning account in the name of both counsel for the parties.
d. In default, the application will stand dismissed with costs, the leave will stand set aside and the stay will automatically lapse.
e. Orders accordingly
Dated, signed and delivered via CTS on 28th August 2024
Mumbua T Matheka
Judge