JULIUS NDUNDA MUNYAO AND JANE WANGUI MUTUKU VS DIANA MWAIA NDUMI

RULING
1.    Before me is the application dated 5/3/2024 brought under Order 22 Rule 22 Order 42 Rule 6, Order 50 Rule 6 Order 51 Rule 1 and 3 of the Civil Procedure Rules section 3A, 79G of Civil Procedure Act, Article 159 (2) (a) and (d) of the Constitution 2010.
2.    It seeks the orders   inter alia:-
1)    Spent
2)    That this Honourable 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 Honourable Geno L. Okwengu Senior Magistrate against the applicants on 17th January, 2024 in Kilungu CMCC E254 of 2022.
3)    Spent
4)    That the honourable court be pleased to grant a stay of execution of the judgment and/or decree issued by Honourable Geno L. Okwengu Resident Magistrate against the applicant on 17th January, 2024 pending the hearing and determination of the intended appeal.
5)    That this Honourable court allows the applicants’ security to the court be in the form of a Bank Guarantee from the Family Bank.
6)    Spent the application be heard inter partes on such date and time as this Honourable court may direct.
7)    That the costs of this application abide the outcome of the appeal.
3.    The grounds for the application are set on its face and supporting affidavit shown by Jane Wangui Mutuku on 5/3/2024.

4.    The grounds are inter alia that:
a)    That judgment herein was entered on 17th January 2024 and the 45 days within which an appeal is to be filed have since lapsed.
b)    The applicant is aggrieved by the judgment delivered on 17th January, 2024 in Kilungu CMCC E254 of 2022 by Honourable, Geno L. Okwengu Senior Resident Magistrate on liability and quantum and seek to appeal out of time.
c)    That the applicant is desirous of filing an appeal on liability and quantum against the said judgment of the lower court.
d)    That the time within which the judgment dated 17th January, 2024 can be appealed according to statute has since lapsed.
e)    That stay of execution granted in this matter has since lapsed and the applicants are apprehensive that if the application to appeal out of time is not allowed the consequent appeal will be rendered nugatory and the applicant/appellant will suffer irreparable loss and damage.
f)    That the applicant received copy of the judgment from their advocates on record after the delivery of the same and immediately proceeded to review it with a view of making their informed and final decision on the available options.
g)    That the delay in filing the appeal was occasioned by the need for communication between the applicants and their advocates in ascertaining the options available with regard to the judgment.
h)    That the delay was occasioned by the fact that by the time the applicant got back to their advocates on record in regard to their opinion the time within which to launch an appeal had already expired.
i)    That the applicant’s/appellant’s insurance is ready, willing and able to furnish the court with a bank guarantee as security to the court.
j)    That the application has been brought without unreasonable or undue delay.
5.    The applicant depones that there is apprehension that should the respondent be paid the money the appeal will be rendered nugatory as he may not be able to pay it back should the appeal succeed.
6.    The applicants have annexed a draft Memorandum of Appeal where the contend:
  1)    That the learned trial magistrate erred in law and fact in finding the defendants/appellants 100% liable for the accident.
2)    That the learned trial magistrate erred in fact and in law in finding that the respondent was entitled to general damages – Kshs.1,850,000, special damages Kshs.12,550, future medical expenses kshs.100,000 plus costs and interests of the suit. Liability apportionment was at 100% in favour of the respondent as against applicant/appellant.
3)    That the learned trial magistrate erred and misdirected himself as to the exact nature of the respondent’s injuries and therefore erred in law in her assessment of damages awardable to the respondent which was manifestly excessive.
4)    That the learned trial magistrate grossly misdirected himself in treating the evidence presented before her on liability and quantum and consequently coming to a wrong conclusion on the same;
5)    That the learned trial magistrate erred in awarding a sum in respect of liability and general damages which was inordinately high in the circumstance was excessive in the circumstances occasioning miscarriage of justice; and
6)    That the learned trial magistrate failed to adequately evaluate the evidence provided both on quantum and liability thereby arrived at a decision unsustainable in law. It proposed to ask the court for the following orders:
a)    That the whole judgment of Hon. Geno L. Okwengu Senior Resident Magistrate delivered on 17th January, 2024 be set aside the same be assessed afresh.
b)    That this appeal be allowed.
c)    That the costs of this appeal and that of the trial court be awarded to the appellant.
d)    That such further orders may be made by this honourable court may deem fit to grant.
7.    The application is opposed vide the replying affidavit of Morris M. Karigi, counsel for the respondent.
8.    The respondents’ counsel depones that the application has no merit.
9.    That the appellant has not explained the delay – from 17/1/2024 when the judgment was delivered to 5/3/2024. That the applicant had obtained stay from the trial court on 17/1/2024 which lapsed on 16/2/2024; that the applicant has not demonstrated by any evidence of any request for the proceedings; that the respondent’s effort to get the applicant to settle the application out of court to fast track the appeal failed due to the reluctance of the applicant.
10.    The respondent filed submissions and argues that there are no reasonable grounds for the applicant’s failure to file the appeal out of time. He relies on Dolphin Coaches Ltd vs Benson Kamau Migwi and Another [2018] e KLR; Nicholas Kiptoo Arap Korir Salat vs IEBC and 7 Others [2014] e KLR.
11.    It is also argued that the applicant has not satisfied the conditions for grant of stay – the court is referred to Teresia Kimani vs. Githere Investments Limited Court of Appeal 94 of 2003, on the requirements of Order 42 Rule 6
Further – to Seyani Brothers & Company (K) Ltd v Albanus Mwangi Muia [2021] e KLR, also citing Gerald Milimbine vs Joseph Kangangi [2009] e KLR.
12.    It is also argued that the applicant does not have an arguable appeal.
13.    I have carefully considered the application, rival affidavits – I did not find the submissions for the applicant.
14.    That besides the issues are two – whether the applicant has presented sufficient grounds for failing to file the appeal out of time; whether the applicant merits an order for stay of execution pending the filing of the appeal?
15.    The applicant did obtain stay of execution in the subordinate court immediately the judgment was delivered. Judgment was delivered on 17/1/2024 and stay for 30 days was granted. What did the applicant do towards the filing of the appeal? Nothing. As at the end of the 30 days on 16/2/2024 the applicant had not taken any action towards the filing of the appeal. The further delay between the 16/2/2024 and the 5th March 2024 when the application was filed is not explained satisfactorily. Infact there is no evidence in the supporting affidavit to demonstrate that the applicant was in any way interested in filing the appeal within the requisite timelines. The application for extension of time to file the appeal out of time is not merited. Having found that – I need not address the 2nd issue.
16.    The application is dismissed with costs to the respondent.
Dated, Signed and Delivered via CTS  this 18th day of October 2024
Mumbua T Matheka
Judge