1. This ruling emanates from a notice of motion application dated 1st July 2024, in which the applicant is seeking orders that:
a) Spent.
b) Spent.
c) Spent The honorable court be pleased to grant leave to the applicants to appeal out of time against the judgement of Hon. P.C Biwott delivered on 15th may 2024 in Ogembo CMMCC No. E241 of 2021.
d) The applicant’s memorandum of appeal annexed hereto be deemed as properly filed.
e) The Honorable court be pleased to stay the execution of judgement of Hon. P.C Biwott delivered on 15th May 2024 in Ogembo CMCC No. E241 of 2021against the applicants pending the hearing and determination of the intended appeal.
f) The Honorable court be pleased to grant the applicants leave to file additional documents contained in their supplementary list of documents annexed to the instant application.
g) That the Honorable court be pleased to grant the applicants leave to file their supplementary list of witnesses as annexed to the instant application.
h) The Honorable court be pleased to admit the applicants supplementary list of witnesses and documents filed out of time.
i) The costs of this application be provided for.
2. This application is premised on the grounds that:
a) The respondent has a judgement and decree in his favour in Ogembo CMCC No. E241 of 2021; Jadson Nyandumo Omari Versus Mogo Auto Limited & another, which judgement was delivered on 15th May 2024 by Hon. P.C Biwott for a sum total of Ksh. 1,354,860.
b) The applicants were granted a 21days stay of execution of the said judgement and decree which stay lapsed on 5th June 2024.
c) After the delivery of the said judgement, the applicants informed their insurer of the contents of aforesaid judgement for its consideration and upon deliberations on the same taking note of the contents of the investigations report dated 4th March 2024 received by the applicant’s insurer after the matter had already been scheduled for delivery of judgement on notice, it became apparent that the said judgment was not fair and just on the apportionment of liability and awards therein which are unmerited in the circumstances.
d) The applicants have requested for certified copies of proceedings and the judgement for purposed of pursuing the intended appeal but are yet to receive the same.
e) The period within which to file an appeal lapsed on 15th June 2024.
f) The applicants dissatisfied with the judgement delivered on 15th May 2024 wish to be afforded a chance to canvas the appeal on merit on account of the issues raised in the memorandum of appeal annexed in the affidavit in support of this application.
g) The applicant’s intended appeal raises triable issues with high chances of success.
h) Applicant’s insurer managed to receive the investigations report dated 4th March 2024 on the said date after the respondent’s case was slated for delivery of judgement on 28th February 2024 wherein the same was deferred to another judgement date to be issued on notice. That the judgement was delivered on 15th May 2024 devoid of any notice issued to the parties herein.
i) The investigations report dated 4th March 2024 and its maker, even based on its date, could not be availed before and/or during the hearing by the applicants despite any reasonable due diligence since the same was only issued after the matter had been slated for delivery of judgement which was subsequently delivered devoid of any notice to the parties as aforesaid. The said investigations report is directly relevant to the issues determined in the trial court and to be determined in the intended appeal and would have impacted on the judgement delivered on 15th May 2024 if it was availed at trial since it discloses a prima facie case in favour of the applicants in terms of rebutting nature of the injuries allegedly sustained by the respondent and the veracity of the medical documents and/ or receipts in support of the same. Additionally, the said investigations report is not voluminous since the same is concise enough to permit an efficient response by the respondent, if he so wishes, without being prejudiced.
j) It is a necessity of justice and fairness that the applicants to be granted leave to file the investigations report dated 4th March 2024 listed in their supplementary list of documents to be produced by its maker, listed in the applicants supplementary list of witnesses annexed to the instant application, which additional evidence questions the veracity of the respondents case for a proper determination of the intended appeal as opposed to filing in the gaps in evidence.
k) The respondent on the other hand is likely to execute the judgement and decree dated 15th May 2024 against the applicants who seek to appeal against the said judgement and therefore, unless the orders of stay of execution sought herein are granted, the applicants stand to suffer substantial and irreparable loss since any execution by the respondent will render the instant application and the intended appeal nugatory.
l) Unless this application is certified urgent and the time within which to file the memorandum of appeal is enlarged and orders of stay of execution granted, the applicants stand to suffer substantial loss as the applicants do not know the financial position of the respondent and as such they are apprehensive that if he is paid the decretal sum or proceeds to execute for the same, he will not be in a position to refund the said decretal sum if the intended appeal succeeds.
m) The applicants’ insurance is willing to provide security for due performance of the judgement and decree dated 15th May 2024 in nature of a Bank Guarantee and/or deposit half the decretal sum in a joint account to secure the intended appeal.
n) The instant application is therefore necessary to preserve the applicants’ assets pending the hearing and determination of the application herein and the intended appeal as any execution by the respondent will render the appeal nugatory and an academic exercise.
o) The instant application has been filed timeously, in the interest of justice and fairness.
p) No prejudice will be suffered by the respondent in any way if the orders sought herein are granted since the same seeks to have both parties heard on merit in the intended appeal.
APPLICANT SUBMISSIONS
3. The applicants submitted that their delay in filing the appeal was occasioned by the fact that their insurer, Britam General Insurance, issued instructions to appeal after the lapse of the prescribed period. They explained that the 15-day delay resulted from the insurer’s internal deliberations on the judgment delivered on 15th May 2024 in favor of the respondent, as well as a review of the Investigation Report dated 4th March 2024.
4. The Applicants assert that their intended appeal is meritorious and has high chances of success. Their dissatisfaction stems from the court's apportionment of 100% liability against them, arguing that the Respondent's testimony was incomplete and uncorroborated, and importantly, the police abstract did not fault the Applicant's driver. Furthermore, they contend that the awarded sum of Ksh. 1,354,860/= for damages is excessive, and they possess an investigation report from March 4, 2024, that suggests the receipts supporting the special damages were forged.
5. The submission emphasizes that the appeal raises "arguable issues." The Applicants argue that declining their requested orders would result in "substantial loss" of the large decretal amount of KShs.1,354,860. They fear the Respondent will execute the judgment, rendering their intended appeal nugatory if successful, because the Respondent's unknown financial ability suggests they would be unable to refund the decretal sum. They further base their argument on the fact that the respondent has not filed any affidavit of means to confirm his financial status.
6. The applicants submitted that they ought be granted leave to adduce additional evidence in the intended appeal because the investigations report dated 4th March 2024 was received by the insurer after the lower court case had been slated for delivery of judgement on 28th February 2024. They submitted that based on the date of the investigations report, it could not be obtained by any reasonable diligence before and during the hearing at the trial court for it to consider the same before rendering its judgement noting that the same was only available at the judgement stage.
7. They contend that the said Report reveals a manipulation and forgery of receipts issued to the Respondent at Hema Hospital, which receipts have a striking similarity with other receipts issued to other patients/ Plaintiffs in other cases regarding the accident herein taking note of the receipt issued to the Respondent which had a hospital visit ID number being different from the payment for invoice EP number, which should not be the case, noting that the invoice EP number for the said receipt was similar to that of a different patient treated at Hema Hospital for the same accident. They further contended that the contents of the report if availed at the lower court could impact the outcome of the judgement and its maker is available for cross-examination if need be.
RESPONDENT SUBMISSIONS
8. The respondent submitted that the primary suit was filed on 6/12/2021 and went through pre-trial directions over a span of 9 months before being set down for hearing on 20/7/2022, when the parties tendered evidence and closed their respective cases, he contended that at no point during the pre-trial phase nor the hearing phase did the applicants allude or raise any issue regarding time to prepare for the trial , filling the investigations report and adducing further evidence on it . He submitted that the applicants failed to state why the said investigation report could not be procured, prepared and adduced at the primary suit hearing thus the court should consider the application as devoid of any legal basis.
9. He submitted that the applicants should not be granted leave to appeal out of time because they failed to state the exact date they became aware of the primary judgement and the actual explanation behind the lateness of taking out appellate proceedings.
10. He contends that the applicant is guilty of indolence and is not keen to participate in court processes as required under Section 1A of the Civil Procedure Act. He submitted that there is a limited lifespan and timelines within which any proceedings are variably able to deliver justice, and the instant proceedings concern a cause of action that arose more than 3 years ago, and the same is being overstretched beyond justifiable limits and costs in a manner that risks occasioning total miscarriage of justice. They prayed that should the court be inclined to allow the instant application, they urge that the same be at the cost of the applicant and that they be directed to set the appeal for hearing within strict timelines. They contended that the application is unmerited and should be dismissed with costs to the respondent.
ISSUES FOR DETERMINATION
11. In regard to the applications and submissions made, the following issues arise for determination:
a) Whether the applicant should be granted leave to file an appeal out of time
b) Whether the applicant should be granted a stay of execution pending appeal
c) Whether the applicant should be granted leave to adduce additional evidence in the intended Appeal
ANALYSIS AND DETERMINATION
Whether the applicant should be granted leave to file an appeal out of time
12. Section 79G of the Civil Procedure Act provides that:
"Every Appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against, excluding from such period any time 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."
13. The power of the court to enlarge time for filing an appeal out of time is provided for under Section 95 of the Civil Procedure Act which states that:
“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.”
This provision is further supported by Order 50 Rule 6 of the Civil Procedure Rules 2010, which provides that:
“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”
14. The principles governing the extension of time were outlined in the case of Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others [2022] KESC 3 (KLR):
“4. The guiding principles in applications for extension of time were as follows;
a. extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;
b. a party who sought for extension of time had the burden of laying a basis to the satisfaction of the court;
c. whether the court should exercise the discretion to extend time, was a consideration to be made on a case-to-case basis;
d. whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. whether there would be any prejudice suffered by the respondents if the extension was granted;
f. whether the application had been brought without undue delay; and
g. whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
15. In proving the above principles, the applicants contended that their delay in filing the appeal was occasioned by the fact that their insurer, Britam General Insurance, issued instructions to appeal after the lapse of the prescribed period. They explained that the 15-day delay resulted from the insurer’s internal deliberations on the judgment delivered on 15th May 2024 in favor of the respondent, as well as a review of the Investigation Report dated 4th March 2024. They relied in the case of Scania East Africa Ltd & 2 Others Versus Patrick Mutisya Kioko [2022] eKLR, wherein the Court in allowing an application for leave to file an appeal out of time for reasons that the Advocate had been instructed to lodge the appeal after the lapse of time to appeal held that: "They then filed the present application on 2nd August 2021 the delay herein is approximately three (3) months which in my view is not inordinate..." Further reliance was placed in the case of Utalii Transport Company Limited & 3 others v Nic Bank Limited & another [2014] KEHC 7255 (KLR) in which it was held that:
“Whereas there is no precise measure of what amounts to inordinate delay. And whereas what amounts to inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay; and so on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable. On applying court’s mind on the delay, caution is advised for courts not to take the word ‘’inordinate’’ in its dictionary meaning, but in the sense of excessive as compared to normality. Therefore, inordinate delay for purposes of dismissal for want of prosecution should be one which is beyond acceptable limits in the prosecution of cases.”
16. The applicants further submitted that their intended appeal is meritorious and has high chances of success basing their argument in their dissatisfaction of the court's apportionment of 100% liability against them, arguing that the Respondent's testimony was incomplete and uncorroborated, and importantly, the police abstract did not fault the Applicant's driver. They emphasized that their investigation report from March 4, 2024, suggests the receipts supporting the special damages were forged. This presents an arguable appeal. They also submitted that the respondent will not suffer prejudice as they are willing to provide reasonable security for due performance of the judgement.
17. In regard to the above explanations and cases relied upon by the applicant, i find that they have established sufficient cause to warrant a grant of leave to appeal out of time.
Whether the applicant should be granted a stay of execution pending appeal
18. The grounds for granting an order of stay of execution are outlined in Order 42 Rule 6(2) of the Civil Procedure Rules, which states that:
No order for stay of execution shall be made under subrule (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.
19. This principles governing stay of execution pending appeal were restated in the case of Elena Doudoladova Korir v Kenyatta University [2012] eKLR at paragraph 7 as follows:
“The High Court's discretion to order stay of execution of its order or decree is fettered by three conditions, namely: - Sufficient cause, Substantial loss would ensue from a refusal to grant stay, the applicant must furnish security, the application must be made without unreasonable delay. In addition, the applicant must demonstrate that the intended appeal will be rendered nugatory if stay is not granted as was held in Hassan Guyo Wakalo v Straman EA Ltd (2013) eKLR and Hassan Guyo Wakalo v Straman FA Ltd [2013] eKLR in which it was held thus;‘In addition, the applicant must prove that if the orders sought are not granted and his appeal eventually succeeds, then the same shall have been rendered nugatory. These twin principles go hand in hand and failure to prove one dislodges the other.’”
20. Therefore, an applicant seeking orders for stay of execution pending appeal must establish the following conditions that:
a) They will suffer substantial loss if the orders sought are not granted by the Court;
b) The application was brought without unreasonable delay; and
c) The Applicant has given such security as the Court orders for the due performance of such a decree or order, which may be binding on them.
21. Regarding substantial loss, in the case of JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR), the court expressed itself as follows;
“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.”
22. The applicants contend that if a stay of execution is not granted, the respondent is likely to commence the process of execution, which will render the appeal nugatory if it succeeds. To establish substantial loss, they argued that in the event that execution is completed, they stand to loss Ksh. 1,354,860 in decretal sum and the respondent is unable to refund the amount considering his financial ability is unknown and he has not filed any affidavit of means to confirm his financial status. They made reference to the case of Co-operative Bank of Kenya Vs Taramusi Francis Ongoki (2019) eKLR, where it was observed that:
“The respondent should have filed an affidavit of means, availed current Bank statement and valuation reports for the properties. Having not done so, I find that he has failed to prove that he is in a position to reimburse the decretal amount if the appeal succeeds and in that regard the applicant may suffer substantial loss.”
In the same case, it was stated that;
“The burden of proof on whether the respondent will be able to reimburse the decretal sum falls on him upon any concerns raised by the Applicant that he is unable to do the same.”
In regard to the above case, the respondent failed to show that he is able to refund the decretal sum incase the appeal succeeds.
23. The applicant also submitted that the judgement being appealed from was delivered on 15th May 2024 while their application was filed on 1st July 2024, 46 days later. It is noted that appeals are to be filed within 30 days after the judgment which in this cases ended on 30th June 2024. The application having been filed on 1.7.24 , then it is clear that the delay was for about 15 days only which is not inordinate . whether they qualify for a grant of leave to appeal out of time, they contended that their application was filed timeously.
24. I am satisfied that the applicant has met the threshold for grating leave to appeal out of time .
25. The applicant did not deposit security within 14days as instructed by the court on 9th July 2024. Therefore, an order for stay of execution is hereby denied.
Whether the applicant should be granted leave to adduce additional evidence in the intended Appeal
26. The power of the court to grant leave to the applicant to file additional evidence is provided for under Section 78(1)(d) of the Civil Procedure Act which states:
78. Powers of appellate court
(1)Subject to such conditions and limitations as may be prescribed, an appellate court shall have power—
(a)to determine a case finally;
(b)to remand a case;
(c)to frame issues and refer them for trial;
(d)to take additional evidence or to require the evidence to be taken;
(e)to order a new trial.
27. The conditions for granting leave to file additional evidence in an appeal were laid out in the case of Dorothy Nelima Wafula v Hellen Nekesa Nielsen & Paul Fredrick Nelson [2017] KECA 654 (KLR)
“Under Rule 29 (1) (b) additional evidence will be introduced on appeal in the discretion of the Court, “for sufficient reason”. Though what constitutes ‘sufficient reason’ is not explained in the rule, through judicial practice the Court has developed guidelines to be satisfied before it can exercise its discretion in favour of a party seeking to present additional evidence on appeal. All the authorities cited by both sides are unanimous on this. The often-cited cases in this regard include, Mzee Wanje & 93 Others V A.K Saikwa (1982-88) 1KAR 462, Joginder Auto Service Ltd V Mohammed Shaffique Civil Appeal (Application No. Nai. 210 of 2000, Karmali Tarmohamed & Ano V. I. H Lakhani (1958) EA 567, which are to the effect that, before the Court can permit additional evidence to be adduced under rule 29, it must be shown, one, that it could not have been obtained by reasonable diligence before and during the hearing; two, that the new evidence would probably have had an important influence on the result of the case if it was available at the time of the trial, and finally, that the evidence sought to be adduced is credible, though it need not be incontrovertible. It is agreed that these are only general principles and certainly not the only ones.”
28. The additional evidence that the applicants intend to file is the investigations report dated 4th March 2024 which they contend that the insurer only managed to receive on 4th March 2024 after the lower court had been slated for delivery of judgement on 28th February 2024. They submitted that the investigations report could not be obtained by any reasonable diligence before and during the hearing at the trial court but failed to adduce the reasons why.
29. The lower court case was filed in the year 2021 and Judgment was delivered on 28.2.24. The instant application has been made 3 years down the line . The applicants failed to adduce reasons as to why the evidence could not be obtained before hearing of judgment since 2021 .Expeditious disposal of cases is now enshrined under Article 159 (2) (b) Constitution of Kenya 2010. The respondent will be prejudiced if the leave to adduce additional evidence is allowed. I am not inclined to grant leave to file additional evidence .
CONCLUSION
30. I proceed to issue the following orders :
a. Leave to appeal out of time is granted on condition that the full decretal sum be deposited in a joint interest earning account within 30 days from today.
b. The annexed draft memorandum be deemed as duty filed upon payment of the requisite fees within 14 days from today and on condition that the full decretal sum be deposited in a joint interest earning account within 30 days from today.
c. Leave to adduce additional evidence is denied .
d. .Mention on 4.7.25 before the Deputy Registrar .
a) Spent.
b) Spent.
c) Spent The honorable court be pleased to grant leave to the applicants to appeal out of time against the judgement of Hon. P.C Biwott delivered on 15th may 2024 in Ogembo CMMCC No. E241 of 2021.
d) The applicant’s memorandum of appeal annexed hereto be deemed as properly filed.
e) The Honorable court be pleased to stay the execution of judgement of Hon. P.C Biwott delivered on 15th May 2024 in Ogembo CMCC No. E241 of 2021against the applicants pending the hearing and determination of the intended appeal.
f) The Honorable court be pleased to grant the applicants leave to file additional documents contained in their supplementary list of documents annexed to the instant application.
g) That the Honorable court be pleased to grant the applicants leave to file their supplementary list of witnesses as annexed to the instant application.
h) The Honorable court be pleased to admit the applicants supplementary list of witnesses and documents filed out of time.
i) The costs of this application be provided for.
2. This application is premised on the grounds that:
a) The respondent has a judgement and decree in his favour in Ogembo CMCC No. E241 of 2021; Jadson Nyandumo Omari Versus Mogo Auto Limited & another, which judgement was delivered on 15th May 2024 by Hon. P.C Biwott for a sum total of Ksh. 1,354,860.
b) The applicants were granted a 21days stay of execution of the said judgement and decree which stay lapsed on 5th June 2024.
c) After the delivery of the said judgement, the applicants informed their insurer of the contents of aforesaid judgement for its consideration and upon deliberations on the same taking note of the contents of the investigations report dated 4th March 2024 received by the applicant’s insurer after the matter had already been scheduled for delivery of judgement on notice, it became apparent that the said judgment was not fair and just on the apportionment of liability and awards therein which are unmerited in the circumstances.
d) The applicants have requested for certified copies of proceedings and the judgement for purposed of pursuing the intended appeal but are yet to receive the same.
e) The period within which to file an appeal lapsed on 15th June 2024.
f) The applicants dissatisfied with the judgement delivered on 15th May 2024 wish to be afforded a chance to canvas the appeal on merit on account of the issues raised in the memorandum of appeal annexed in the affidavit in support of this application.
g) The applicant’s intended appeal raises triable issues with high chances of success.
h) Applicant’s insurer managed to receive the investigations report dated 4th March 2024 on the said date after the respondent’s case was slated for delivery of judgement on 28th February 2024 wherein the same was deferred to another judgement date to be issued on notice. That the judgement was delivered on 15th May 2024 devoid of any notice issued to the parties herein.
i) The investigations report dated 4th March 2024 and its maker, even based on its date, could not be availed before and/or during the hearing by the applicants despite any reasonable due diligence since the same was only issued after the matter had been slated for delivery of judgement which was subsequently delivered devoid of any notice to the parties as aforesaid. The said investigations report is directly relevant to the issues determined in the trial court and to be determined in the intended appeal and would have impacted on the judgement delivered on 15th May 2024 if it was availed at trial since it discloses a prima facie case in favour of the applicants in terms of rebutting nature of the injuries allegedly sustained by the respondent and the veracity of the medical documents and/ or receipts in support of the same. Additionally, the said investigations report is not voluminous since the same is concise enough to permit an efficient response by the respondent, if he so wishes, without being prejudiced.
j) It is a necessity of justice and fairness that the applicants to be granted leave to file the investigations report dated 4th March 2024 listed in their supplementary list of documents to be produced by its maker, listed in the applicants supplementary list of witnesses annexed to the instant application, which additional evidence questions the veracity of the respondents case for a proper determination of the intended appeal as opposed to filing in the gaps in evidence.
k) The respondent on the other hand is likely to execute the judgement and decree dated 15th May 2024 against the applicants who seek to appeal against the said judgement and therefore, unless the orders of stay of execution sought herein are granted, the applicants stand to suffer substantial and irreparable loss since any execution by the respondent will render the instant application and the intended appeal nugatory.
l) Unless this application is certified urgent and the time within which to file the memorandum of appeal is enlarged and orders of stay of execution granted, the applicants stand to suffer substantial loss as the applicants do not know the financial position of the respondent and as such they are apprehensive that if he is paid the decretal sum or proceeds to execute for the same, he will not be in a position to refund the said decretal sum if the intended appeal succeeds.
m) The applicants’ insurance is willing to provide security for due performance of the judgement and decree dated 15th May 2024 in nature of a Bank Guarantee and/or deposit half the decretal sum in a joint account to secure the intended appeal.
n) The instant application is therefore necessary to preserve the applicants’ assets pending the hearing and determination of the application herein and the intended appeal as any execution by the respondent will render the appeal nugatory and an academic exercise.
o) The instant application has been filed timeously, in the interest of justice and fairness.
p) No prejudice will be suffered by the respondent in any way if the orders sought herein are granted since the same seeks to have both parties heard on merit in the intended appeal.
APPLICANT SUBMISSIONS
3. The applicants submitted that their delay in filing the appeal was occasioned by the fact that their insurer, Britam General Insurance, issued instructions to appeal after the lapse of the prescribed period. They explained that the 15-day delay resulted from the insurer’s internal deliberations on the judgment delivered on 15th May 2024 in favor of the respondent, as well as a review of the Investigation Report dated 4th March 2024.
4. The Applicants assert that their intended appeal is meritorious and has high chances of success. Their dissatisfaction stems from the court's apportionment of 100% liability against them, arguing that the Respondent's testimony was incomplete and uncorroborated, and importantly, the police abstract did not fault the Applicant's driver. Furthermore, they contend that the awarded sum of Ksh. 1,354,860/= for damages is excessive, and they possess an investigation report from March 4, 2024, that suggests the receipts supporting the special damages were forged.
5. The submission emphasizes that the appeal raises "arguable issues." The Applicants argue that declining their requested orders would result in "substantial loss" of the large decretal amount of KShs.1,354,860. They fear the Respondent will execute the judgment, rendering their intended appeal nugatory if successful, because the Respondent's unknown financial ability suggests they would be unable to refund the decretal sum. They further base their argument on the fact that the respondent has not filed any affidavit of means to confirm his financial status.
6. The applicants submitted that they ought be granted leave to adduce additional evidence in the intended appeal because the investigations report dated 4th March 2024 was received by the insurer after the lower court case had been slated for delivery of judgement on 28th February 2024. They submitted that based on the date of the investigations report, it could not be obtained by any reasonable diligence before and during the hearing at the trial court for it to consider the same before rendering its judgement noting that the same was only available at the judgement stage.
7. They contend that the said Report reveals a manipulation and forgery of receipts issued to the Respondent at Hema Hospital, which receipts have a striking similarity with other receipts issued to other patients/ Plaintiffs in other cases regarding the accident herein taking note of the receipt issued to the Respondent which had a hospital visit ID number being different from the payment for invoice EP number, which should not be the case, noting that the invoice EP number for the said receipt was similar to that of a different patient treated at Hema Hospital for the same accident. They further contended that the contents of the report if availed at the lower court could impact the outcome of the judgement and its maker is available for cross-examination if need be.
RESPONDENT SUBMISSIONS
8. The respondent submitted that the primary suit was filed on 6/12/2021 and went through pre-trial directions over a span of 9 months before being set down for hearing on 20/7/2022, when the parties tendered evidence and closed their respective cases, he contended that at no point during the pre-trial phase nor the hearing phase did the applicants allude or raise any issue regarding time to prepare for the trial , filling the investigations report and adducing further evidence on it . He submitted that the applicants failed to state why the said investigation report could not be procured, prepared and adduced at the primary suit hearing thus the court should consider the application as devoid of any legal basis.
9. He submitted that the applicants should not be granted leave to appeal out of time because they failed to state the exact date they became aware of the primary judgement and the actual explanation behind the lateness of taking out appellate proceedings.
10. He contends that the applicant is guilty of indolence and is not keen to participate in court processes as required under Section 1A of the Civil Procedure Act. He submitted that there is a limited lifespan and timelines within which any proceedings are variably able to deliver justice, and the instant proceedings concern a cause of action that arose more than 3 years ago, and the same is being overstretched beyond justifiable limits and costs in a manner that risks occasioning total miscarriage of justice. They prayed that should the court be inclined to allow the instant application, they urge that the same be at the cost of the applicant and that they be directed to set the appeal for hearing within strict timelines. They contended that the application is unmerited and should be dismissed with costs to the respondent.
ISSUES FOR DETERMINATION
11. In regard to the applications and submissions made, the following issues arise for determination:
a) Whether the applicant should be granted leave to file an appeal out of time
b) Whether the applicant should be granted a stay of execution pending appeal
c) Whether the applicant should be granted leave to adduce additional evidence in the intended Appeal
ANALYSIS AND DETERMINATION
Whether the applicant should be granted leave to file an appeal out of time
12. Section 79G of the Civil Procedure Act provides that:
"Every Appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against, excluding from such period any time 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."
13. The power of the court to enlarge time for filing an appeal out of time is provided for under Section 95 of the Civil Procedure Act which states that:
“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.”
This provision is further supported by Order 50 Rule 6 of the Civil Procedure Rules 2010, which provides that:
“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”
14. The principles governing the extension of time were outlined in the case of Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others [2022] KESC 3 (KLR):
“4. The guiding principles in applications for extension of time were as follows;
a. extension of time was not a right of a party. It was an equitable remedy that was only available to a deserving party at the discretion of the court;
b. a party who sought for extension of time had the burden of laying a basis to the satisfaction of the court;
c. whether the court should exercise the discretion to extend time, was a consideration to be made on a case-to-case basis;
d. whether there was a reasonable reason for the delay. The delay should be explained to the satisfaction of the court;
e. whether there would be any prejudice suffered by the respondents if the extension was granted;
f. whether the application had been brought without undue delay; and
g. whether in certain cases, like election petitions, public interest should be a consideration for extending time.”
15. In proving the above principles, the applicants contended that their delay in filing the appeal was occasioned by the fact that their insurer, Britam General Insurance, issued instructions to appeal after the lapse of the prescribed period. They explained that the 15-day delay resulted from the insurer’s internal deliberations on the judgment delivered on 15th May 2024 in favor of the respondent, as well as a review of the Investigation Report dated 4th March 2024. They relied in the case of Scania East Africa Ltd & 2 Others Versus Patrick Mutisya Kioko [2022] eKLR, wherein the Court in allowing an application for leave to file an appeal out of time for reasons that the Advocate had been instructed to lodge the appeal after the lapse of time to appeal held that: "They then filed the present application on 2nd August 2021 the delay herein is approximately three (3) months which in my view is not inordinate..." Further reliance was placed in the case of Utalii Transport Company Limited & 3 others v Nic Bank Limited & another [2014] KEHC 7255 (KLR) in which it was held that:
“Whereas there is no precise measure of what amounts to inordinate delay. And whereas what amounts to inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay; and so on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable. On applying court’s mind on the delay, caution is advised for courts not to take the word ‘’inordinate’’ in its dictionary meaning, but in the sense of excessive as compared to normality. Therefore, inordinate delay for purposes of dismissal for want of prosecution should be one which is beyond acceptable limits in the prosecution of cases.”
16. The applicants further submitted that their intended appeal is meritorious and has high chances of success basing their argument in their dissatisfaction of the court's apportionment of 100% liability against them, arguing that the Respondent's testimony was incomplete and uncorroborated, and importantly, the police abstract did not fault the Applicant's driver. They emphasized that their investigation report from March 4, 2024, suggests the receipts supporting the special damages were forged. This presents an arguable appeal. They also submitted that the respondent will not suffer prejudice as they are willing to provide reasonable security for due performance of the judgement.
17. In regard to the above explanations and cases relied upon by the applicant, i find that they have established sufficient cause to warrant a grant of leave to appeal out of time.
Whether the applicant should be granted a stay of execution pending appeal
18. The grounds for granting an order of stay of execution are outlined in Order 42 Rule 6(2) of the Civil Procedure Rules, which states that:
No order for stay of execution shall be made under subrule (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.
19. This principles governing stay of execution pending appeal were restated in the case of Elena Doudoladova Korir v Kenyatta University [2012] eKLR at paragraph 7 as follows:
“The High Court's discretion to order stay of execution of its order or decree is fettered by three conditions, namely: - Sufficient cause, Substantial loss would ensue from a refusal to grant stay, the applicant must furnish security, the application must be made without unreasonable delay. In addition, the applicant must demonstrate that the intended appeal will be rendered nugatory if stay is not granted as was held in Hassan Guyo Wakalo v Straman EA Ltd (2013) eKLR and Hassan Guyo Wakalo v Straman FA Ltd [2013] eKLR in which it was held thus;‘In addition, the applicant must prove that if the orders sought are not granted and his appeal eventually succeeds, then the same shall have been rendered nugatory. These twin principles go hand in hand and failure to prove one dislodges the other.’”
20. Therefore, an applicant seeking orders for stay of execution pending appeal must establish the following conditions that:
a) They will suffer substantial loss if the orders sought are not granted by the Court;
b) The application was brought without unreasonable delay; and
c) The Applicant has given such security as the Court orders for the due performance of such a decree or order, which may be binding on them.
21. Regarding substantial loss, in the case of JAMES WANGALWA & ANOTHER V AGNES NALIAKA CHESETO [2012] KEHC 1094 (KLR), the court expressed itself as follows;
“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.”
22. The applicants contend that if a stay of execution is not granted, the respondent is likely to commence the process of execution, which will render the appeal nugatory if it succeeds. To establish substantial loss, they argued that in the event that execution is completed, they stand to loss Ksh. 1,354,860 in decretal sum and the respondent is unable to refund the amount considering his financial ability is unknown and he has not filed any affidavit of means to confirm his financial status. They made reference to the case of Co-operative Bank of Kenya Vs Taramusi Francis Ongoki (2019) eKLR, where it was observed that:
“The respondent should have filed an affidavit of means, availed current Bank statement and valuation reports for the properties. Having not done so, I find that he has failed to prove that he is in a position to reimburse the decretal amount if the appeal succeeds and in that regard the applicant may suffer substantial loss.”
In the same case, it was stated that;
“The burden of proof on whether the respondent will be able to reimburse the decretal sum falls on him upon any concerns raised by the Applicant that he is unable to do the same.”
In regard to the above case, the respondent failed to show that he is able to refund the decretal sum incase the appeal succeeds.
23. The applicant also submitted that the judgement being appealed from was delivered on 15th May 2024 while their application was filed on 1st July 2024, 46 days later. It is noted that appeals are to be filed within 30 days after the judgment which in this cases ended on 30th June 2024. The application having been filed on 1.7.24 , then it is clear that the delay was for about 15 days only which is not inordinate . whether they qualify for a grant of leave to appeal out of time, they contended that their application was filed timeously.
24. I am satisfied that the applicant has met the threshold for grating leave to appeal out of time .
25. The applicant did not deposit security within 14days as instructed by the court on 9th July 2024. Therefore, an order for stay of execution is hereby denied.
Whether the applicant should be granted leave to adduce additional evidence in the intended Appeal
26. The power of the court to grant leave to the applicant to file additional evidence is provided for under Section 78(1)(d) of the Civil Procedure Act which states:
78. Powers of appellate court
(1)Subject to such conditions and limitations as may be prescribed, an appellate court shall have power—
(a)to determine a case finally;
(b)to remand a case;
(c)to frame issues and refer them for trial;
(d)to take additional evidence or to require the evidence to be taken;
(e)to order a new trial.
27. The conditions for granting leave to file additional evidence in an appeal were laid out in the case of Dorothy Nelima Wafula v Hellen Nekesa Nielsen & Paul Fredrick Nelson [2017] KECA 654 (KLR)
“Under Rule 29 (1) (b) additional evidence will be introduced on appeal in the discretion of the Court, “for sufficient reason”. Though what constitutes ‘sufficient reason’ is not explained in the rule, through judicial practice the Court has developed guidelines to be satisfied before it can exercise its discretion in favour of a party seeking to present additional evidence on appeal. All the authorities cited by both sides are unanimous on this. The often-cited cases in this regard include, Mzee Wanje & 93 Others V A.K Saikwa (1982-88) 1KAR 462, Joginder Auto Service Ltd V Mohammed Shaffique Civil Appeal (Application No. Nai. 210 of 2000, Karmali Tarmohamed & Ano V. I. H Lakhani (1958) EA 567, which are to the effect that, before the Court can permit additional evidence to be adduced under rule 29, it must be shown, one, that it could not have been obtained by reasonable diligence before and during the hearing; two, that the new evidence would probably have had an important influence on the result of the case if it was available at the time of the trial, and finally, that the evidence sought to be adduced is credible, though it need not be incontrovertible. It is agreed that these are only general principles and certainly not the only ones.”
28. The additional evidence that the applicants intend to file is the investigations report dated 4th March 2024 which they contend that the insurer only managed to receive on 4th March 2024 after the lower court had been slated for delivery of judgement on 28th February 2024. They submitted that the investigations report could not be obtained by any reasonable diligence before and during the hearing at the trial court but failed to adduce the reasons why.
29. The lower court case was filed in the year 2021 and Judgment was delivered on 28.2.24. The instant application has been made 3 years down the line . The applicants failed to adduce reasons as to why the evidence could not be obtained before hearing of judgment since 2021 .Expeditious disposal of cases is now enshrined under Article 159 (2) (b) Constitution of Kenya 2010. The respondent will be prejudiced if the leave to adduce additional evidence is allowed. I am not inclined to grant leave to file additional evidence .
CONCLUSION
30. I proceed to issue the following orders :
a. Leave to appeal out of time is granted on condition that the full decretal sum be deposited in a joint interest earning account within 30 days from today.
b. The annexed draft memorandum be deemed as duty filed upon payment of the requisite fees within 14 days from today and on condition that the full decretal sum be deposited in a joint interest earning account within 30 days from today.
c. Leave to adduce additional evidence is denied .
d. .Mention on 4.7.25 before the Deputy Registrar .