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JudgmentJOSEPHH MUINDE P. MATHUVA VS KASULE JOHN MBITHUKA5 min read

JOSEPHH MUINDE P. MATHUVA VS KASULE JOHN MBITHUKA

High Court at Makueni High Court · · Matheka, Teresia Mumbua


  1. The issues for determination herewith are (1) whether the applicant is entitled to leave to file an appeal out of time, upon determination of the above issue, (2) whether he is entitled to an order of stay of execution pending the hearing and determination of the appeal.
  2. The gist of the matter is that there was filed at Makindu SPM court a series of cases to wit MCCC 55, 56, 57, 58, 68, 150, 152 and 153 of 2020.
  3. MCCC 150 of 2020 (from which this appeal has arisen) was selected as the test suit on liability.
  4. Judgment in that matter was delivered on 6/3/2023 and a 30-day stay of execution of judgment was granted by the subordinate court.
  5. The applicant filed Notice of Motion dated 27/6/2023, amended on 24/10/2023 seeking both leave to appeal out of time and stay of execution of the judgment pending hearing and determination of the appeal.
  6. On the 1st issue the period within which to file an appeal is set by law at section 79G of the Civil Procedure Act.

Time for filing appeals from subordinate courts

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. Where a party has not complied with the said time limits Section 95 gives the court the discretion to enlarge time thus;

Enlargement of time

Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

Order 22 rule (1) of the Civil Procedure Code tells when to grant stay of execution

The court to which a decree has been sent for execution shall, upon sufficient cause being shown, stay the execution of such decree for a reasonable time to enable the judgment-debtor to apply to the court by which the decree was passed, or to any court having appellate jurisdiction in respect of the decree or the execution thereof, for an order to stay the execution, or for any other order relating to the decree or execution which might have been made by the court of first instance, or appellate court if execution has been issued thereby, or if application for execution has been made thereto.

  1. The Supreme Court in Nicholas Kiprono Arap Korir Salat vs- IEBC and 7 Others (2014) e KLR lays down the principles to apply in matters extension of time

“It is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for the delay in making the application for extension and whether there was an extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant”

  1. The applicants reason is that the delay was caused by the time he took to seek legal counsel. He states that he received copy of the judgment from the advocates on record after the delivery of the same and immediately proceeded to review it with a view of making an informed and final decision on the available options and that the delay in filing the appeal was occasioned by the need for communication him and his advocates and that the  stay orders granted by the subordinate court had since lapsed he was apprehensive that if the application to appeal out of time is not allowed the consequent appeal would be rendered nugatory and the applicant/appellant will suffer irreparable loss and damage.
  2. It has not escaped my attention that the grounds placed herein above are standard grounds applied in all applications for stay of execution by counsel for the applicant and it is even evident to me that the manner in which they are worded in the application the refer to more than one applicant yet in this matter there is one.
  3. Be that as it may I have considered the same as though they apply only to this applicant.
  4. The application is opposed on the grounds that those reasons are not sufficient explanation inter alia that; Judgment was delivered on 6/3/2023, the application was filed on 4/7/2023. The delay from March to July has not been explained. In fact, the applicant had a stay for 30 days but still did nothing. Even after the expiry of the 30 days – the applicant did nothing. In the circumstances – no reasonable explanation has been made for the delay and the prayer for extension of time is not tenable.
  5. With respect to the other issue the respondents position is that stay pending appeal is not deserved. First the application was brought after inordinate delay, the second is that there is nothing before court to show that substantive loss will occur. That the test case was on liability and the subordinate court found that the applicant was 199% liable because it was self-involving and the plaintiff could not have contributed to the accident.
  6. On whether there is a viable appeal, though it is not an issue that ought to be determined at this stage, the determination on liability speaks to the question as to whether there is a viable appeal.
  7. On whether there is security for the performance of the decree, from the application the security that has been offered is dated 22/2/2022 and there is no evidence of renewal.
  8. Having considered the submissions on record I have found that the application for leave to file an appeal out of time was brought after inordinate delay which has not explained to the satisfaction of the court.
  9. The application for stay pending appeal is also not established, was brought after unreasonable delay, no decree is attached to bring the matter under rule 22 of the CPR, no sufficient cause laid down for the prayers sought, no evidence of substantial loss, and no viable security for the performance of the decree offered.
  10. The most outstanding reasons why the application fails, no reasonable explanation for the delay, despite even getting stay orders in the lower court.
  11. The application is dismissed with costs to the respondent.

Dated, signed and delivered virtually on 28/6/2024

Mumbua T Matheka

Judge

    JOSEPHH MUINDE P. MATHUVA VS KASULE JOHN MBITHUKA JOSEPHH MUINDE P. MATHUVA VS KASULE JOHN MBITHUKA