JULIAH NJERI KINUTHIA VS EVANS NDIGUTHA NGANGA AND CHANIA GENENIS CO LTD

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

CIVIL MISC. CASE NO. E082 OF 2023

JULIA NJERI KINUTHIA……………………………………APPELLANT

VERSUS

EVANS NDIGUTHA NGANGA…………………....… 1^ST RESPONDENT

CHANIA GENESIS COMPANY LIMITED ………… 2^ND RESPONDENT

RULING

1. On 28/8/2023, the learned trial magistrate in Makindu SPMCC 285 of 2018 delivered a judgment in which the plaintiff was awarded the sum of Kshs.290,000/= as general damages for pain and suffering following injuries sustained in an Road Traffic Accident on 11/4/2018.
2. The award provoked the intention to file an appeal which intention only became real on 2/11/2023 when the applicant filed an application under certificate of urgency seeking orders to extend time to file the appeal out of time, and to stay the execution of the judgment and decree pending the hearing and determination of the said appeal.
3. That application was brought vide Notice of Motion dated 1/11/2023, under Order 22 Rule 22, Order 42, Rule 6, Order 50 Rule 6, Order 51 Rule 1 and 3 of Civil Procedure Rules, section 3A, 79G of the Civil Procedure Act, Article 159(2) (a) and (d) of the Constitution of Kenya 2010.
4. The application is supported by the affidavit of the applicant sworn on 1/11/2023, and the draft memorandum of appeal attached to it.
5. There are similar grounds on the face of the application – basically that the appellant received the judgment from her counsel but that by the time she had reviewed it, and arrived at a decision to file the appeal, time had run out for her hence this application.
6. The respondents filed a response through their advocate Evans M. Mochama who depones that the court has discretion to determine the application and contends that the intended appeal has no chances of success as it lacks merit.
7. The 1^st respondent filed submissions which I have perused.
8. The respondent’s position is that there is no objection on condition that ½ the decretal sum be released to plaintiff’s counsel on record, the other ½ be deposited in a joint interest earning account.
9. The only issue for determination is whether the application is merited.
10. With regard to delay in filing the application and the appeal – there was delay of about two months whose explanation is that the applicant was still deciding whether to proceed on appeal or not – on substantial loss it is contended that the respondent’s means are unknown, and on security the appellant offers a bank guarantee.
11. I note that the application is not  opposed as long as the conditions sought by the respondent are granted.
12. I consider the delay to be unreasonable, the explanation not satisfactory and the security offered as insufficient.
13. However, the respondent is has made a concession and on the basis of the proposal made – I will allow the application as follows: -
14. Leave to file appeal out of time is allowed.
15. Stay of execution pending the hearing and determination of the appeal is granted.
16. The appeal be filed and served within 30 days hereof.
17. The stay of execution is subject to the applicant releasing ½ the decretal sum to the counsel for the plaintiff within 30 days hereof.
18. The other ½ be deposited in a joint interest earning account of the advocates or in court within 30 days hereof.
19. In default of any of the conditions  herein the order of stay of execution will lapse automatically, the respondent be at liberty to execute.
20. The respondent will have the costs of the application
21. Mention before Deputy Registrar within 30 days hereof for compliance.

Dated, signed and delivered by CTS on 27^th September 2024

Mumbua T Matheka

Judge