1. The Applicant approached this court through a Notice of Motion dated 26/06/2023 seeking orders thus: -
(i) Spent
(ii) This Honourable Court be pleased to grant the Applicant leave to appeal out of time in respect to the judgment/decree delivered in NYAHURURU CMCC NO.20 of 2020 by Hon. CM Muhoro (SRM)
(iii) This Honourable court be pleased to grant a temporary order of stay of execution of the judgment and/or the decree delivered on 08/05/2023 and all consequential orders arising therefrom pending the hearing and determination of this application interpartes.
(iv) This Honourable Court be pleased to grant an order of stay of execution of the judgment and/or the decree delivered on or about 08/05/2023 and all consequential orders arising therefrom pending the hearing and determination of the intended Appeal herein.
(v) This Honourable Court be pleased to issue an order for provision of a Bank Guarantee of the entire decretal sum awarded by the trial court of kshs.208,650/= as security pending hearing and determination of the intended Appeal herein.
(vi) This Honourable court be pleased to issue any other Order as it may deem just appropriate and expedient in the interest of justice
(vii) Costs of this application be provided for;
2. The application is premised on grounds that the judgment delivered in Nyahururu CMCC No.20 of 2020 was delivered on 08/05/2023 in favour of the Plaintiff/Respondent as against the Defendant/Applicant at 100% in favour of the Plaintiff/Respondent and general damages of kshs.200,000 and special damages of kshs.8650/= costs and interest thereon are awarded to the Plaintiff/Respondent.
3. That the delay in filing appeal was inadvertent and excusable due to delay in receiving instructions from their instructing clients and the appeal has good chances of success.
4. That the Applicant is apprehensive that the Respondent will commence execution proceedings against him to his detriment. That he stands to suffer substantial loss and damage if orders sought are not granted and the intended appeal will be rendered nugatory if stay is not granted.
5. That the Respondent will not be prejudiced if orders sought are granted and it is in the interest of justice that execution of the judgment and/or decree be stayed to pave way for the Applicant to exercise his right of Appeal. And if orders sought are not granted the Applicant stands to suffer irreparable loss since their right of appeal will be curtailed and the ability of the Respondent to refund the decretal amount is unknown.
6. Lastly, the Applicant is willing and ready to furnish a Bank guarantee for the entire decretal amount sum pending the hearing and determination of the intended appeal as a condition for allowing the application for leave to appeal out of time and stay of execution pending appeal.
7. In response thereto, the Respondent depones that he instituted a case against the Applicant seeking compensation for injuries sustained as a result of a road traffic accident that occurred on 15/11/2019 a matter that came up severally since judgment was delivered.
8. That the Applicant was granted 30 days’ stay of execution but failed to satisfy the judgment and instead opted to file the instant application. That the appeal has no merit and thus no chances of succeeding. That the Bank guarantee is not a mode of security provided for a road traffic accident matters. That he will be greatly prejudiced if the application is allowed, which is a delaying tactic aimed at delaying him from enjoying the fruits of his judgment.
9. The application was canvassed through written submissions. In that regard, I have considered the application, affidavits in support and opposition and rival submissions thereto. The Applicant seeks leave to appeal out of time. Section 79G of the Civil Procedure Act provides:
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.
10. This court is seized of jurisdiction to extend time within which a party can appeal out of time. The discretion is exercised upon satisfaction of existence of sufficient cause for not acting within the statutory period of 30 days provided.
11. In Henry Mukora Mwangi v Charles Gichina Mwangi Civil Application No. Nairobi 26 of 2004 the court held that;
“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.”
12. In cited case of Beth Mugure Gathungu v James Muchiri Gathinyo & Others CMC 237 of 2014 the court held that;
“ It is upon the applicant to place sufficient material before the court which would explain why there was delay in filing the Memorandum and Record of Appeal. The court has to balance the competing interests of the applicant with those of the respondent. This was well stated in the case Ms. Portreitz Maternity versus James Karanga kavia, Civil Appeal No 63 of 1997 where the court stated
“That right of appeal must be balanced against an equal weighty right that of the plaintiff to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depriving the plaintiff of that right.”
13. A plausible and satisfactory explanation for delay is the key that unlocks the Court’s flow of discretionary favor. There has to be value and clear reasons, upon which discretion can be favourably exercised. There have been numerous judicial pronouncements on this precise point.”
14. Judgment in the matter was delivered on 08/05/2003 and the instant application was filed on 26/06/2023. The reason given for the delaying is that he claims officer who had further instructions left employment of the insurer before issuing further instructions and on further instructions being sought the instructing client was dissatisfied with the judgment hence instructed him to appeal. The Respondent dismisses the reason given for the delay as insufficient. The action was taken after a month. That cannot be dismissed as inordinate delay.
15. On the question of stay of execution, Order 42 Rule (1) (2) of the Civil Procedure Rules provides:
(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under sub rule (1) unless—
(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
16. In the case of Butt v Rent Restriction Tribunal [1982] KLR 417, the court discussed the question of discretion and stated thus;
1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.
3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.
5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”
17. The Applicant urges that if the order sought is not granted he will suffer substantial loss as the Respondent on being paid will deal with the sum in a manner prejudicial to the Applicant if the appeal succeeds. To this the Respondent argues the Applicant only aims at frustrating him as the appeal will not succeed. In James Wangalwa & Another v Agnes Naliaka Chesoto [2012] eKLR the court stated that;
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
18. On the question of arguability of the appeal, I note that in event the appeal succeeds the ability to repay the sum is not known hence substantial loss may be suffered. In Amal Hauliers Limited v Abdulnasir Hassan [2017] eKLR it was stated that;
“The Respondent has not disclosed any source of income that he would use to refund the Applicant the decretal amount should the appeal succeed. Indeed, the Respondent’s averment that he is in dire need of money to continue with treatment for the serious injuries received in the accident can only confirm that he will not be able to refund the decretal sum were the Applicant’s appeal to succeed. The Applicant has thus established that it will suffer substantial loss if the intended execution is not stayed.
19. As for the requisite security in such an application; In Arun C. Sharma v Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 Others [2014] KEHC 1412 (KLR) the court stated that;
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment-debtor. The alternative security being offered presents several problems. The first one-the security is owned by another person. This is a civil suit where the Applicants are judgment-debtors.”
20. Then, in Boniface Kariuki Wahome v Peter Nziki Nyamai & Another [2019] KEHC (KLR) the court stated as follows;
“Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.”
21. The Applicant is willing to furnish security of bank guarantee which is vehemently opposed by the Respondent. However, it would be in the interest of justice that the appeal is not rendered nugatory. For that reason, I order thus;
a) The Applicant be and is hereby granted leave to appeal out of time within 30 days.
b) There be Stay of execution of the judgment and decree on condition that ½ the decretal sum be paid to the Respondent within 30days.
c) Costs of the application to shall be paid to the Respondent.
It is so ordered.
HCMISCL APPL. NO. E017 OF 2023 RULING Page 6
(i) Spent
(ii) This Honourable Court be pleased to grant the Applicant leave to appeal out of time in respect to the judgment/decree delivered in NYAHURURU CMCC NO.20 of 2020 by Hon. CM Muhoro (SRM)
(iii) This Honourable court be pleased to grant a temporary order of stay of execution of the judgment and/or the decree delivered on 08/05/2023 and all consequential orders arising therefrom pending the hearing and determination of this application interpartes.
(iv) This Honourable Court be pleased to grant an order of stay of execution of the judgment and/or the decree delivered on or about 08/05/2023 and all consequential orders arising therefrom pending the hearing and determination of the intended Appeal herein.
(v) This Honourable Court be pleased to issue an order for provision of a Bank Guarantee of the entire decretal sum awarded by the trial court of kshs.208,650/= as security pending hearing and determination of the intended Appeal herein.
(vi) This Honourable court be pleased to issue any other Order as it may deem just appropriate and expedient in the interest of justice
(vii) Costs of this application be provided for;
2. The application is premised on grounds that the judgment delivered in Nyahururu CMCC No.20 of 2020 was delivered on 08/05/2023 in favour of the Plaintiff/Respondent as against the Defendant/Applicant at 100% in favour of the Plaintiff/Respondent and general damages of kshs.200,000 and special damages of kshs.8650/= costs and interest thereon are awarded to the Plaintiff/Respondent.
3. That the delay in filing appeal was inadvertent and excusable due to delay in receiving instructions from their instructing clients and the appeal has good chances of success.
4. That the Applicant is apprehensive that the Respondent will commence execution proceedings against him to his detriment. That he stands to suffer substantial loss and damage if orders sought are not granted and the intended appeal will be rendered nugatory if stay is not granted.
5. That the Respondent will not be prejudiced if orders sought are granted and it is in the interest of justice that execution of the judgment and/or decree be stayed to pave way for the Applicant to exercise his right of Appeal. And if orders sought are not granted the Applicant stands to suffer irreparable loss since their right of appeal will be curtailed and the ability of the Respondent to refund the decretal amount is unknown.
6. Lastly, the Applicant is willing and ready to furnish a Bank guarantee for the entire decretal amount sum pending the hearing and determination of the intended appeal as a condition for allowing the application for leave to appeal out of time and stay of execution pending appeal.
7. In response thereto, the Respondent depones that he instituted a case against the Applicant seeking compensation for injuries sustained as a result of a road traffic accident that occurred on 15/11/2019 a matter that came up severally since judgment was delivered.
8. That the Applicant was granted 30 days’ stay of execution but failed to satisfy the judgment and instead opted to file the instant application. That the appeal has no merit and thus no chances of succeeding. That the Bank guarantee is not a mode of security provided for a road traffic accident matters. That he will be greatly prejudiced if the application is allowed, which is a delaying tactic aimed at delaying him from enjoying the fruits of his judgment.
9. The application was canvassed through written submissions. In that regard, I have considered the application, affidavits in support and opposition and rival submissions thereto. The Applicant seeks leave to appeal out of time. Section 79G of the Civil Procedure Act provides:
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.
10. This court is seized of jurisdiction to extend time within which a party can appeal out of time. The discretion is exercised upon satisfaction of existence of sufficient cause for not acting within the statutory period of 30 days provided.
11. In Henry Mukora Mwangi v Charles Gichina Mwangi Civil Application No. Nairobi 26 of 2004 the court held that;
“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.”
12. In cited case of Beth Mugure Gathungu v James Muchiri Gathinyo & Others CMC 237 of 2014 the court held that;
“ It is upon the applicant to place sufficient material before the court which would explain why there was delay in filing the Memorandum and Record of Appeal. The court has to balance the competing interests of the applicant with those of the respondent. This was well stated in the case Ms. Portreitz Maternity versus James Karanga kavia, Civil Appeal No 63 of 1997 where the court stated
“That right of appeal must be balanced against an equal weighty right that of the plaintiff to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depriving the plaintiff of that right.”
13. A plausible and satisfactory explanation for delay is the key that unlocks the Court’s flow of discretionary favor. There has to be value and clear reasons, upon which discretion can be favourably exercised. There have been numerous judicial pronouncements on this precise point.”
14. Judgment in the matter was delivered on 08/05/2003 and the instant application was filed on 26/06/2023. The reason given for the delaying is that he claims officer who had further instructions left employment of the insurer before issuing further instructions and on further instructions being sought the instructing client was dissatisfied with the judgment hence instructed him to appeal. The Respondent dismisses the reason given for the delay as insufficient. The action was taken after a month. That cannot be dismissed as inordinate delay.
15. On the question of stay of execution, Order 42 Rule (1) (2) of the Civil Procedure Rules provides:
(1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.
(2) No order for stay of execution shall be made under sub rule (1) unless—
(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and
(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.
16. In the case of Butt v Rent Restriction Tribunal [1982] KLR 417, the court discussed the question of discretion and stated thus;
1. The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.
2. The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the judge’s discretion.
3. A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.
4. The court in exercising its discretion whether to grant [or] refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in this case were that there was a large amount of rent in dispute and the appellant had an undoubted right of appeal.
5. The court in exercising its powers under Order XLI rule 4(2)(b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse.”
17. The Applicant urges that if the order sought is not granted he will suffer substantial loss as the Respondent on being paid will deal with the sum in a manner prejudicial to the Applicant if the appeal succeeds. To this the Respondent argues the Applicant only aims at frustrating him as the appeal will not succeed. In James Wangalwa & Another v Agnes Naliaka Chesoto [2012] eKLR the court stated that;
“No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold, as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the CPR. This is so because execution is a lawful process.
The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] 1KLR 867, and also in the case of Mukuma V Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
“…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
18. On the question of arguability of the appeal, I note that in event the appeal succeeds the ability to repay the sum is not known hence substantial loss may be suffered. In Amal Hauliers Limited v Abdulnasir Hassan [2017] eKLR it was stated that;
“The Respondent has not disclosed any source of income that he would use to refund the Applicant the decretal amount should the appeal succeed. Indeed, the Respondent’s averment that he is in dire need of money to continue with treatment for the serious injuries received in the accident can only confirm that he will not be able to refund the decretal sum were the Applicant’s appeal to succeed. The Applicant has thus established that it will suffer substantial loss if the intended execution is not stayed.
19. As for the requisite security in such an application; In Arun C. Sharma v Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 Others [2014] KEHC 1412 (KLR) the court stated that;
“The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the Applicant. It is not to punish the judgment-debtor. The alternative security being offered presents several problems. The first one-the security is owned by another person. This is a civil suit where the Applicants are judgment-debtors.”
20. Then, in Boniface Kariuki Wahome v Peter Nziki Nyamai & Another [2019] KEHC (KLR) the court stated as follows;
“Where the applicant proposes to provide security as the Applicant has done, it is a mark of good faith that the application for stay is not just meant to deny the respondent the fruits of judgment. My view is that it is sufficient for the applicant to state that he is ready to provide security or to propose the kind of security but it is the discretion of the Court to determine the security. The Applicant has offered to provide security and has therefore satisfied this ground for stay.”
21. The Applicant is willing to furnish security of bank guarantee which is vehemently opposed by the Respondent. However, it would be in the interest of justice that the appeal is not rendered nugatory. For that reason, I order thus;
a) The Applicant be and is hereby granted leave to appeal out of time within 30 days.
b) There be Stay of execution of the judgment and decree on condition that ½ the decretal sum be paid to the Respondent within 30days.
c) Costs of the application to shall be paid to the Respondent.
It is so ordered.
HCMISCL APPL. NO. E017 OF 2023 RULING Page 6