MOTREX LIMITED AND YASIN MUSTAFA VS MUTISO MUTUNGWA & JACINTA SYOWAI WAMBUA(Legal Administrators)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

CIVIL MISCELLANEOUS CASE NO. E063 OF 2024

MOTREX LIMITED………………………….……………1^ST APPLICANT

YASIN MUSTAFA ………………………………………… 2^ND APPLICANT

VERSUS

MUTISO MUTUNGWA……………………..……....… 1^ST RESPONDENT

JACINTA SYOWAI WAMBUA …………………….… 2^ND RESPONDENT

(Suing as the administrators of the Estate of the Late Onesmus Mutua Mutiso (deceased)

RULING

1. On 18/8/2019 the deceased was involved in a Road Traffic Accident which involving a motor vehicle driven or owned by the defendants /applicants.
2. The legal representatives of the deceased - who died from injuries sustained in the said Road Accident – filed a suit Makindu MCC 148 of 2020 seeking damages under the Law Reform Act and the Fatal Accident Act.
3. On 10/3/2022 the parties entered into a consent on liability at 80:20 in favour of the plaintiff.
4. On 15/2/2024 the learned trial magistrate delivered a judgment awarding the plaintiffs/respondents Kshs. 7,881,485/= as loss of dependency; Kshs. 100,000 pain and suffering.
5. An application under certificate of urgency dated 18/3/2024 was brought through Notice of Motion under section 79G, 95, 1A, 1B and 3A, CPA, Order 42 Rule 6, Order 12 Rule 6 and 7, Order 51, Rule 1 of Civil Procedure Rules, Article 59(2)(d) of Constitution of Kenya 2010.
6. The applicant seeks orders; leave to file appeal out of time, stay of execution of the judgment and decree of the subordinate court pending the hearing and determination of the appeal and costs be provided for.
7. The application is supported by grounds on its face, and in the supporting affidavit sworn by Sophie Omollo on 18/3/2024 and the annexed memorandum of appeal.
8. The application is opposed vide the replying affidavit of Jacinta Syowai Wambua sworn on 16/4/2024.
9. Parties also filed written submissions.
10. I have carefully considered the application, affidavit, annexures and submissions. The only issue for determination is whether the application complies with section 79G, Order 42 Rule 6.
11. With respect to the  delay in filing the appeal – I note that the same was filed on 18/3/2024 and judgment was delivered on 15/2/2024. The 30 days required were exceeded by three days. The respondents contend that a satisfactory explanation has been given for not filing the appeal in time. The appellant’s explanation through counsel is that there was delay in obtaining the written copy of the judgment and could not file the appeal without the requisite clarity from the court.
12. I have considered this explanation and it sounds plausible – however it is strengthened by the supporting correspondence by the applicant’s counsel to the court, to the effect that the delay was because the lower court judgment was not readily available because it was being typed. The applicant relied on Mwangi vs Kenya Airways Ltd [2003] e KLR where the court held

“An applicant seeking extension of time must demonstrate to the court that the delay has not been inordinate that there is good reason for the delay and that the appeal has merit”.

1. The record also shows that the delay is approximately three days – which is not inordinate and is excusable.
2. Both parties submit that it is within the discretion of this court to grant or deny the prayers sought. The applicant relies on George Kimotho Ilewe vs Joseph Mathuku Ngewa and Another (legal representatives) Machakos HC. MISC. APPL NO. E72 of 2021 to demonstrate the cornerstone of the excuse of the discretion – That like any other judicial discretion it

“,,, must be on fixed principles and not on private opinions, sentiments and sympathies or benevolence but deservedly and not arbitrarily, whimsically or capriciously. The courts discretion being judicial must be exercised on the basis of evidence and sound legal principles ,,,”

1. The court is also referred to Nicholas  Kiptoo Arap  Korir Salat vs IEBC and 7 Others [2014] e KLR on the applicable considerations in the exercise of Judicial discretion – the Supreme court was of the view that the extension of time is a discretion to be exercised on a case to case basis and since it is an equitable remedy it is only available to a deserving party. This party has the burden of laying a basis to the satisfaction of the court whether there is reasonable delay and the reason for the delay. The application for extension must have been brought without undue delay and the court must ask itself whether any prejudice will be suffered by the respondent if the extension is granted.
2. The appellant also cites National Union of Mine Workers vs Council of Mineral Technology ZALAC 22 at paragraph 10-

Where the court was of the view that the discretion of the court is to be exercised judicially upon the consideration of all facts and that it is a matter of fairness to all the parties. That the court is to consider

“ ,,, the degree of lateness, the explanation thereof, the prospects of success, the importance of the case ,,,”That all these factors are to be considered together. The court concluded that “ a slight delay and a good explanation may help to compensate for prospects of success which are not strong”.

17. I have considered the explanation given by the applicant for the delay and the period of delay – both are reasonable explanations and I find no reason not to accept the same.

18. I have perused the memorandum of appeal and in their submissions counsel for the applicant explains why they consider that they have a good appeal – I have considered the submissions and note that the grounds for the appeal are not idle.

19. It is submitted by the respondent that the supporting affidavit for the application is sworn by a stranger, that the conduct of the applicants is appealing making them unworthy of the exercise of the discretion of this court.

20. The affidavit in support of the application is sworn by the Legal Claims Officer of M/s First Assurance Company Limited – the insurer of the applicants with the authority of her employer. The deponent comes on behalf of the Insurance Company that is bound to pay the award to the respondents. The insurance company submits that there is a statutory limit to the amount it is bound to pay by law. It is my view that the application is supported by the affidavit of a person who is aware of the facts of the matter, facts which are not controverted and who cannot be described as a stranger to the facts deponed to.

21. On the issue of security, the applicant submits that they are willing to deposit the decretal sum which the statutory limits prescribed by Motor Vehicle (Third Party Risks) Act either in a joint interest earning account or in court.

22. For the respondent it is argued that there is no compliance by the applicant with  Order 42 Rule 6 of the Civil Procedure Rule and further that liability was agreed at 80:20 and the respondents who are in need of money should be allowed to enjoy the fruits of their judgment.

23. The court is required to balance the rights of both parties even at this stage – of the applicant to an appeal of the respondent to the fruits of a lawful judgment.

24. In the circumstances of this case the application is allowed in the following terms:

1. Leave to appeal out of time is granted – appeal be filed within 30 days hereof.
2. Stay of execution of the decree is allowed pending the hearing and determination of the appeal on the  following conditions:
3. That the sum of Kshs 1.2 million be released to the respondents within 30 days hereof.
4. That the sum of Kshs.1.8 million be deposited in a joint interest earning account in the names of both advocates within 30 days hereof.
5. That in default of (i) and (ii) the stay will lapse automatically, the application will stand dismissed  and the respondent will be at liberty to execute.
6. Costs of this application to the respondent.
7. Parties are at liberty to pursue out of court settlement even at this stage.

Dated, signed and delivered via CTS this 27/9/2024

Mumbua T Matheka

Judge