1. I have considered the Notice of Motion dated 12th August, 2024 brought by the Applicant, Mapping Trading Company Limited, seeking leave to appeal out of time against the judgment delivered on 4th June, 2024 in Milimani MCCOMMSU No. 9802 of 2018. The Applicant also seeks stay of execution of the said judgment pending appeal.
2. The application is supported by the grounds on its face and the supporting affidavit sworn by the Applicant on the same date. The 1st Respondent, Summer Limited, opposed the application through its replying affidavit sworn on 6th December, 2024 and filed submissions. The 2nd and 3rd Respondents did not oppose the application.
3. The application is anchored on sections 79G, 95 and 63(e) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules.
4. Section 79G of the Civil Procedure Act provides as follows:
“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: 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.”
5. The Court of Appeal in Thuita Mwangi v Kenya Airways Ltd [2003] eKLR identified the factors to guide the court in the exercise of its discretion to enlarge time. These include:
i) The length of delay;
ii) The reason for the delay;
iii) The arguability of the intended appeal;
iv) The degree of prejudice to the respondent;
v) The importance of compliance with timelines; and
vi) The effect on the administration of justice.
6. Similarly, the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR emphasized that extension of time is an equitable and discretionary remedy that is not to be granted as a matter of right.
7. In the present case, the judgment was delivered on 4th June, 2024. The statutory time for lodging an appeal expired on or about 4th July, 2024. The instant application was filed on 12th August, 2024, approximately thirty-eight (38) days after the lapse of the prescribed period.
8. The delay, while not extraordinarily long, is nonetheless not insignificant. As observed in Peter Kioko & Another v Elizabeth Wanza Musyoki [2021] eKLR, delays of up to two months may, depending on circumstances, be excusable.
9. The Applicant attributes the delay to inadvertence and the time taken to convene a board meeting to secure authority to lodge the appeal. The 1st Respondent contends that this explanation is vague, unsupported by evidence, and constitutes material non-disclosure. Indeed, no minutes or board resolutions were annexed to substantiate this position.
10. The court in Dilpack Kenya Limited v William Muthama Kitonyi [2018] KEHC 4858 (KLR) held that mere allegations of inadvertence, without adequate detail or documentation, are insufficient to justify extension of time.
11. Nevertheless, while the explanation offered is not entirely satisfactory, I am not persuaded that the Applicant acted in bad faith or was willfully negligent. The delay is also not so prolonged as to occasion irremediable prejudice.
12. The Applicant contends that it was not a party to the sale agreement of August 2017, and that the trial court erred in finding that its representative executed the contract. This raises a bona fide arguable point suitable for appellate consideration. As held in Athuman Nusura Juma v Afwa Mohamed Ramadhan [2016] eKLR, an arguable appeal need not necessarily succeed. It must however raise an issue worthy of ventilation.
13. The 1st Respondent submitted that granting the orders sought would impede its enjoyment of the fruits of judgment and cause prejudice. While I am not blind to this concern, I am of the view that any such prejudice may be ameliorated by suitable conditions for stay and appropriate directions in relations in relation to the prosecution of the appeal.
14. I am equally mindful that adherence to timelines serves the public interest in expeditious litigation. However, the overarching constitutional imperative of substantive justice under Article 159(2)(d) must also be given due regard. This is especially so in circumstances where the delay is not prolonged.
15. The Applicant has further prayed for stay of execution pending appeal, citing risk of substantial loss should execution proceed. The decretal sum in issue is Kshs. 4,000,000/=. The applicable legal test is as set out under Order 42 Rule 6(2) of the Civil Procedure Rules as considered in Matata & Another v Rono & Another (Civil Appeal E034 of 2024) [2024] KEHC 2799 (KLR).
16. In relation to the said test, the Applicant has not demonstrated that the Respondent would be unable to refund the sum if paid. However, execution may render the appeal nugatory if recovery proves difficult. The Applicant has expressed willingness to provide security for due performance of the decree. I am of the view that it ought to do so as a condition for stay.
17. Having considered all the circumstances, I am satisfied that the justice of the matter demands that the Applicant be granted an opportunity to ventilate its intended appeal. I accordingly make the following orders:
i) Leave be and is hereby granted to the Applicant to file an appeal out of time.
ii) The Applicant shall file and serve its Memorandum of Appeal within fourteen (14) days of this ruling.
iii) There shall be a stay of execution of the judgment delivered on 4th June, 2024 pending the hearing and determination of the intended appeal, on condition that the Applicant deposits the entire decretal sum of Kshs. 4,000,000/= in an interest-earning joint account in the names of the parties’ advocates on record within forty-five (45) days from the date hereof.
iv) In default of compliance with order (iii) above, the stay of execution shall automatically lapse without further order of the court.
v) Costs of the application shall abide the outcome of the intended appeal.
It is so ordered.
2. The application is supported by the grounds on its face and the supporting affidavit sworn by the Applicant on the same date. The 1st Respondent, Summer Limited, opposed the application through its replying affidavit sworn on 6th December, 2024 and filed submissions. The 2nd and 3rd Respondents did not oppose the application.
3. The application is anchored on sections 79G, 95 and 63(e) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules.
4. Section 79G of the Civil Procedure Act provides as follows:
“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: 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.”
5. The Court of Appeal in Thuita Mwangi v Kenya Airways Ltd [2003] eKLR identified the factors to guide the court in the exercise of its discretion to enlarge time. These include:
i) The length of delay;
ii) The reason for the delay;
iii) The arguability of the intended appeal;
iv) The degree of prejudice to the respondent;
v) The importance of compliance with timelines; and
vi) The effect on the administration of justice.
6. Similarly, the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR emphasized that extension of time is an equitable and discretionary remedy that is not to be granted as a matter of right.
7. In the present case, the judgment was delivered on 4th June, 2024. The statutory time for lodging an appeal expired on or about 4th July, 2024. The instant application was filed on 12th August, 2024, approximately thirty-eight (38) days after the lapse of the prescribed period.
8. The delay, while not extraordinarily long, is nonetheless not insignificant. As observed in Peter Kioko & Another v Elizabeth Wanza Musyoki [2021] eKLR, delays of up to two months may, depending on circumstances, be excusable.
9. The Applicant attributes the delay to inadvertence and the time taken to convene a board meeting to secure authority to lodge the appeal. The 1st Respondent contends that this explanation is vague, unsupported by evidence, and constitutes material non-disclosure. Indeed, no minutes or board resolutions were annexed to substantiate this position.
10. The court in Dilpack Kenya Limited v William Muthama Kitonyi [2018] KEHC 4858 (KLR) held that mere allegations of inadvertence, without adequate detail or documentation, are insufficient to justify extension of time.
11. Nevertheless, while the explanation offered is not entirely satisfactory, I am not persuaded that the Applicant acted in bad faith or was willfully negligent. The delay is also not so prolonged as to occasion irremediable prejudice.
12. The Applicant contends that it was not a party to the sale agreement of August 2017, and that the trial court erred in finding that its representative executed the contract. This raises a bona fide arguable point suitable for appellate consideration. As held in Athuman Nusura Juma v Afwa Mohamed Ramadhan [2016] eKLR, an arguable appeal need not necessarily succeed. It must however raise an issue worthy of ventilation.
13. The 1st Respondent submitted that granting the orders sought would impede its enjoyment of the fruits of judgment and cause prejudice. While I am not blind to this concern, I am of the view that any such prejudice may be ameliorated by suitable conditions for stay and appropriate directions in relations in relation to the prosecution of the appeal.
14. I am equally mindful that adherence to timelines serves the public interest in expeditious litigation. However, the overarching constitutional imperative of substantive justice under Article 159(2)(d) must also be given due regard. This is especially so in circumstances where the delay is not prolonged.
15. The Applicant has further prayed for stay of execution pending appeal, citing risk of substantial loss should execution proceed. The decretal sum in issue is Kshs. 4,000,000/=. The applicable legal test is as set out under Order 42 Rule 6(2) of the Civil Procedure Rules as considered in Matata & Another v Rono & Another (Civil Appeal E034 of 2024) [2024] KEHC 2799 (KLR).
16. In relation to the said test, the Applicant has not demonstrated that the Respondent would be unable to refund the sum if paid. However, execution may render the appeal nugatory if recovery proves difficult. The Applicant has expressed willingness to provide security for due performance of the decree. I am of the view that it ought to do so as a condition for stay.
17. Having considered all the circumstances, I am satisfied that the justice of the matter demands that the Applicant be granted an opportunity to ventilate its intended appeal. I accordingly make the following orders:
i) Leave be and is hereby granted to the Applicant to file an appeal out of time.
ii) The Applicant shall file and serve its Memorandum of Appeal within fourteen (14) days of this ruling.
iii) There shall be a stay of execution of the judgment delivered on 4th June, 2024 pending the hearing and determination of the intended appeal, on condition that the Applicant deposits the entire decretal sum of Kshs. 4,000,000/= in an interest-earning joint account in the names of the parties’ advocates on record within forty-five (45) days from the date hereof.
iv) In default of compliance with order (iii) above, the stay of execution shall automatically lapse without further order of the court.
v) Costs of the application shall abide the outcome of the intended appeal.
It is so ordered.