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JudgmentSIMBA COACH LIMITED VS JANE NERIMA ODUORI AND SIMBA PLATINUM LIMITED8 min read

SIMBA COACH LIMITED VS JANE NERIMA ODUORI AND SIMBA PLATINUM LIMITED

High Court at Makueni High Court · · Matheka, Teresia Mumbua


RULING

  1. The Notice of Motion before me is brought under Order 22 Rule 22, Order 42 Rule 42 Rule 6, Order 50 Rule 6 Order 51 Rule 1 and 3 of the Civil Procedure Rules, section 3A, 79G, of the Civil Procedure Act, Article 159(2)(a) and (d) of the Constitution of Kenya, 2010 and all other enabling provisions of the law seeking the following orders:
  2. That this application be certified urgent, service thereof be dispensed with and the same be heard ex-parte in the first instance.
  3. That this honourable court be pleased to grant leave to the applicants to lodge an appeal and file a memorandum of appeal out of time against the judgment and decree of the honourable J.D Karani Senior Resident Magistrate against the applicants on 21st June, 2023 in Makindu CMCC 82 of 2021.
  4. That this honourable court be pleased to grant a stay of execution of the judgment and/or decree issued by Honourable, J.D Karani Senior Resident Magistrate against the applicants on 21st June 2023 pending the hearing and determination of this application.
  5. That this honourable court be pleased to grant a stay of execution of the judgment and/or decree issued by Honourable, J.D Karani Senior Resident Magistrate against the applicant on 21st June, 2023 pending the hearing and determination of the intended appeal.
  6. That this Honourable court allows the applicants’ security to the court be in the form of a bank guarantee from the Family Bank.
  7. That the application be heard inter- parte on such date and time as this Honourable court may direct.
  8. That the costs of this application abide the outcome of the appeal.
  9. The grounds upon which the application is based are inter alia that:
  10. The judgment herein was entered on 21st June, 2023 and the 30 days within which an appeal is to be filed have since lapsed.
  11. The applicant is aggrieved by the judgment delivered on 21st June 2023 in Makindu CMCC 82 of 2021 by, J.D Karani Senior Resident Magistrate on quantum seeking to appeal out of time.
  12. That the applicant is desirous of filing an appeal on quantum against the said judgment of the lower court
  13. That the time within which the judgment dated 21st June, 2023 can be appealed according to statute has since lapsed.
  14. That the applicant received copy of the judgment from their advocates on record after the delivery of the same and immediately proceeded to review it with a view of making their informed and final decision on the available options.
  15. That the delay in filing the appeal was occasioned by the need for communication between the applicants and their advocates in ascertaining the options available with regard to the judgment.
  16. That the delay was occasioned by the fact that by the time the applicants got back to their advocates on record in regard to

their opinion the time within which to launch an appeal had already expired.

  1. The applicant/appellant are willing to give a bank guarantee for the whole decretal amount to this honourable court to enable the applicants/appellants pursue their appeal.
  2. That the applicants’/appellants insurance is ready, willing and able to furnish the court with a bank guarantee as security to the court.
  3. The application is supported by the affidavit of Abdul Rashid Yusuf sworn on 25/08/2023, where he depones inter alia-
  4. That he is one of the directors of the appellant/applicant herein and has the authority of the other directors to swear this affidavit on its behalf and in support of the application filed herein.
  5. That he is informed by his advocates on record which information he verily believes to be true on 21st June, 2023, judgment was delivered against the applicant wherein the plaintiff was awarded general damages of Ksh. 200,000/= special damages Kshs.9850/= plus costs and interest of the suit and that liability was apportioned at 100% in favour of the plaintiff as against the defendant.
  6. That being aggrieved and dissatisfied with the said judgment, they instructed M/s Kimondo Gachoka & Company advocates to appeal against the said judgment.
  7. In the Memorandum of appeal, he contends:
  8. That the learned trial magistrate erred in law and f act in finding the defendants/appellants 100% liable for the accident.
  9. That the learned trial magistrate erred in fact and in law in finding that the respondent was entitled to general damages of Kshs. 200,000/= special damages of Kshs9850/= plus costs and interests of the suit for the injuries suffered which award is exorbitantly high based on the injuries sustained.
  10. That the learned trial magistrate erred and misdirected himself as to the exact nature of the respondent’s injuries and therefore erred in law in the assessment of damages specially quantum awarded to the respondent which was manifestly excessive.
  11. That the learned trial magistrate grossly misdirected herself in treating the evidence presented before her on quantum and consequently coming to a wrong conclusion on the same;
  12. That the learned trial magistrate erred in awarding a sum in respect of future medical expenses which was inordinately high in the circumstance was excessive in the circumstances occasioning miscarriage of justice and
  13. That the learned trial magistrate failed to adequately evaluate the evidence provided both on quantum thereby arrived at a decision unsuitable in law.
  14. The application is opposed through the affidavit of Jane Nerima Oduori sworn on 18th September 2023 where she depones inter alia:
  15. That even going to the merits of the motion, she is advised by her advocates on record, that the applicant has not satisfied the legal threshold for grant of the orders sought and thus the application should be dismissed.
  16. That from the onset, the applicant has not given a sufficient explanation for the delay in filing the intended appeal on time...and as admitted in the supporting affidavit, the trial court delivered its judgment on 21/06/2023 on which date the applicant was duly represented in court. Subsequent to the delivery, her advocates served the applicant’s advocates with a letter on the 23/06/2023 informing them of the judgment.
  17. That the explanation deposed in the supporting affidavit reeks of sheer inaction on the part of the applicant. That:
  18. It is not stated, and deliberately so, what hampered communication between the applicant and its advocates. In this era of technology, communication cannot be as challenging as the applicant seemingly portrays.
  19. It is equally not stated when the applicant was informed of the judgment and when it gave instructions to appeal. The indisclosure is quite calculated to avoid giving a sufficient explanation for the delay.
  20. The applicant has not demonstrated efforts it took to follow up its case. It cannot abdicate its duty to follow up its case and hide behind the issue of ‘need for communication’.
  21. That from the foregoing the applicant has not offered any reasonable explanation for the delay of more than two months in bringing this instant application. As a matter of fact, rather than being sincere to the court, it has chosen to deliberately be less than candid.
  22. That in relation to providing security, she is advised by her advocates on record that the security the applicant relies on is untenable in law, based on the following:
  23. The bank guarantee is issued by a third party that is not party to these proceedings, and thus cannot be enforced against it. It is not in doubt that the requirement for security is placed upon the applicant, and not on third parties.
  24. Under clause 2 of the bank guarantee, the duration is indicated as 12 months with an option to renew. There is no certainty that the guarantee will be renewed, thus in the event it is not renewed, it cannot serve as security on account of such uncertainty, it cannot operate as sufficient security.
  25. Under clause 3, the purpose of the guarantee, inter alia, is to provide security for awards and or costs awarded in various court cases/claims pending before court. The number of cases/claims is not disclosed given that the guarantee is issued to Directline Assurance Company Limited, the leading PSV insurer, it is not farfetched to say the guarantee is or can be exhausted. Indeed, the applicant has not availed proof of

the number of claims to ascertain this fact. Again, this makes the guarantee uncertain and insufficient as a security

  1. That in the event that the court grants the stay, then, since there is no evidence of substantial loss and the decree herein is a money decree, and further the issue of liability is not in question, the applicant should pay at least half of the decretal amount, and the balance to be held in an interest earning savings account held in joint names of both advocates on record.
  2. That further, the applicant should be ordered to file its appeal and the record of appeal within 45 days.
  3. That he believes his proposal will balance the interest of both parties as he will enjoy some of the fruits of his judgment and the applicant will be able to pursue its appeal.
  4. Parties filed written submissions which I have considered. The issue is whether the application is tenable.
  5. The 1st respondent was a passenger hence the issue of liability on her part would not arise on appeal as the defendants did not avail any

evidence before the subordinate court in that regard. Even in the supporting affidavit the appellant states that the appeal is on quantum of damages. Hence, it is safe to conclude here that the appeal is purely on quantum.

8. From the record, judgment was delivered on 21/06/2023. The application was filed on 31/08/2023. The delay of about 2 months is not sufficiently explained by the applicant.

9. I am in agreement with the applicant that the bank guarantee offered as security is not sufficient to guarantee the due performance of the decree herein. In addition, the applicant has not shown that there would be substantial loss if the stay is not granted.

10.  I note however, that, the proposal made by the respondent in the affidavit in response, will balance the interests of the parties. One, to enjoy part of the fruits of the judgment, secure the remainder, and two, to give the appellant the opportunity to pursue the appeal. 

11.  I am persuaded that the application for stay of execution is not strenuously opposed and that the respondent is amenable to it being allowed with conditions.

12. In view of that the application is allowed on condition:

  1. That Ksh. 100,000/= be paid to the appellant and the balance be deposited in court within 30 days hereof. In default the stay will lapse automatically and the application will stand dismissed with costs to the respondent.
  2. The appeal be filed within 45 days hereof.
  3. Mention before the Deputy Registrar on 27th August 2024 for compliance on 2.

Dated and signed and delivered virtually on 21/6/2024

MUMBUA T. MATHEKA

JUDGE

N/A for counsel who had notice

NB paragraphing distorted by system

    SIMBA COACH LIMITED VS JANE NERIMA ODUORI AND SIMBA PLATINUM LIMITED SIMBA COACH LIMITED VS JANE NERIMA ODUORI AND SIMBA PLATINUM LIMITED