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JudgmentJOSEPH KARANJA MWANGI VS JANE WANJIRU NJENDU7 min read

JOSEPH KARANJA MWANGI VS JANE WANJIRU NJENDU

High Court at Kiambu High Court · · Andayi W.F.

  1. Joseph Karanja Mwangi the appellant/applicant herein, has filed before this Court a Notice of Motion dated 22/1/2024 seeking for various orders. The pertinent ones are as below, others having been declined at the ex parte stage, are spent or they follow as of necessity the determination of the application:
    1. The court do find that the memorandum of appeal in Kiambu HCCA No. E007 of 2024 filed out of time on 18/1/2024 to have been filed within time and therefore properly on record. 
    2. The court to grant stay of execution of the judgment and/or decree issued by Honourable M. Kinyanjui on 30/10/2023 pending the hearing and determination of the appeal and the court to allow the applicant to furnish the court with security in the form of a bank guarantee from DTB Bank.
  2. The application is brought under section 3, 3A and 79G of the Civil Procedure Act, Order 22 Rule 22, Order 42 Rules 4, 6 and 7 and all other enabling provisions of the law. The grounds in support of the application are laid on the face therefore and expounded in the supporting affidavit sworn on 22/1/2024 by Joseph Karanja Mwangi, the appellant/applicant.
  3. In summary, they are that the appellant’s appeal has high chances of success as it raises pertinent issues on quantum, the respondent having been awarded KShs 180,000/= general damages and KShs 4,550/= special damages.
  4. The appellant/applicant deposes that the time within which he is allowed by statute to appeal the judgment dated 30/10/2023 had lapsed by the time he filed the memorandum of appeal. That the respondent has threatened execution and the appellant is apprehensive that if stay of execution is not granted the respondent will proceed to execute thus rendering the application and the appeal nugatory thereby greatly prejudicing the appellant/applicant. That the decree is for a substantial sum and he is apprehensive that if the same is paid to the respondent, the appellant will not be able to recover the whole sum if his appeal is successful. That the appellant’s insurer is ready, willing and able to provide a bank guarantee from Family Bank (this is as per the supporting affidavit but the grounds indicate the bank as DTB).
  5. The application is opposed by the respondent through her replying affidavit sworn on 30/1/2024. She deposes that the application is without merit, there was inordinate delay in filing it and it is only meant to delay her from enjoying the fruits of the judgment and the continued with holding of the decretal sum will cause great prejudice to the respondent as he is not able to meet his financial obligations. That the applicant has not demonstrated that the appeal has high chances of success.
  6. The respondent deposes that she is a farmer and business lady and can easily raise any money that she may have utilized in the event the appeal is successful.
  7. That otherwise, should the court find merit in the application then the same should be granted on condition that the appellant deposits half of the decretal sum in court and the other half be paid over to the respondent.
  8. The court directed that the application be heard by way of written submissions. Neither of the parties had filed submissions as at the time of writing this ruling in spite of time being extended to them on several occasions to do so.
  9. I have considered the Notice of Motion application dated 22/1/2024, the grounds in support thereof and the supporting affidavit as well as replying affidavit sworn on 30/1/2024. The issues for determination are whether the application has merit, what orders the court should issue and who bears the costs of the application.
  10. The first prayer is for extension of time to file the appeal herein lodged by way of the memorandum of appeal dated 17/1/2024.
  11. Section 79G of the Civil Procedure Act under which the prayer for extension of time is based 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.”

  1. The appellant has conceded that he filed the memorandum of appeal two months after the due date for filing the same as provided for under section 79G CPA. He has not stated that the delay in filing the appeal was occasioned by time taken by the court to prepare and deliver to him a copy of the decree. So that consideration does not apply in his case. Under the proviso to section 79G CPA, the appeal may still 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. In applying this section, courts have held that the court has a wide discretion to extend time to file an appeal but the discretion must not be exercised capriciously but judiciously and based on sound judgment and consideration of the totality of the facts and law. In the case of Thuita Mwangi v Kenya Airways Ltd [2003] eKLR the Court of Appeal held setting out the principles for the court to consider 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.”

  1. The Supreme Court explained further in the case of Nicholas Kiptoo Arap Korir Salat v IEBC (2014) eKLR Sup Ct Application No 16 of 2014 that:

“…extension of time is not a right of a party; a party who seeks extension of time has the burden of laying a basis to the satisfaction of the Court. Of paramount importance, the reason for delay must be explained to the satisfaction of the Court. Further, the application for extension must be brought without undue delay and it must be demonstrated if the respondent will not suffer prejudice if extension is granted”.

  1. It follows that a party seeking extension of time must first lay a basis for the delay and the reason(s) offered must be to the satisfaction of the court. This is what constitutes good and sufficient cause as required by the law. In the present application, the applicant has not offered either in the grounds seeking the extension or the supporting affidavit, any explanation for the delay at all, leave alone one that is to the satisfaction of the court. A delay of two months can be readily explained for instance, even if on account of the advocate who was handling the matter having moved from the law firm as many counsels are wont to tell the court. It is usually not a strong reason but it is one all the same that the court is prepared to consider, if only to ensure that a party is not driven out of the seat of judgment without being heard on the merits. There are indeed many reasons to explain a delay and so the applicant is required to offer them, even if only one, and the court to be satisfied that they are cogent. But the failure to offer any explanation at all smirks of either negligence or dereliction of duty. It falls victim to the respondent’s complaint that the application was made only with a view to delay enjoyment of his fruits of the judgment. Such kind of conduct on the part of an applicant for extension of time cannot be countenanced by the court.
  2. I find that there being no good and sufficient explanation for the delay in filing the appeal, the court has no basis upon which to exercise its discretion to extend time to file the appeal and consider the memorandum of appeal herein as duly filed.
  3. The substratum of the application having been the extension of time, it follows that the court has no ground upon which to anchor the prayer for stay of execution and so the same cannot be considered.
  4. The entire application is found to be without merit and the same is dismissed. For clarity, the memorandum of appeal filed herein is struck out.
  5. The costs of the appeal and the application as well as for the trial court are awarded to the respondent.
  6. Orders accordingly.
  7. Delivered, dated and signed at Kiambu on the Virtual Platform, Teams this 17th day of September, 2024.


    JOSEPH KARANJA MWANGI VS JANE WANJIRU NJENDU JOSEPH KARANJA MWANGI VS JANE WANJIRU NJENDU