Boniface Kimathi alias Kimathi Murithi v Karen Wanja Kaiyera [2022] KEHC 1510 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

MISC. CIVIL APPLICATION NO. E001 OF 2022

BONIFACE KIMATHI alias KIMATHI MURITHI............................................APPLICANT

VERSUS

KAREN WANJA KAIYERA..............................................................................RESPONDENT

R U L I N G

1. The applicant’s Notice of Motion dated 5/1/2022 seeks extension of time to appeal from the decision of the trial court in Tigania PMCC No. 55 of 2016 delivered by judgment of 19/10/21 and an order of stay of execution pending the hearing and determination of the appeal.

2. By its Judgment of 19/10/2021, the trial court found the applicant liable at 100% for the motor vehicle accident subject of the Respondent’s suit and awarded general damages of Kshs. 1,350,000/= and special damages of 46,035/=.

3. The applicant seeks to appeal from both liability and the quantum and urges that if stay of execution is not granted recovery of the same, if the appeal is successful, might not be possible and the Respondent as not shown by documentary evidence his financial standing. For security the applicant proposes to furnish the court with a Bank Guarantee. The reason for the delay in appeal is given as delayed instructions by the intended Appellant to his advocates.

4. The Respondent opposes the application for extension of time, and stay of execution by Replying Affidavit sworn on 21/1/2022 urging that the application had been brought after inordinate delay of  about 3 months since the delivery   of judgment on 19/10/21, and alleged lack of  candor on the part of the applicant’s counsel on record who “was served with a judgment notice together with directions to file  written submissions but  he refused and or neglected to file submissions or  attend court for judgment”.

5. I have considered the application and taken the view that the delay in filing the Memorandum of Appeal, which the Applicant could have filed within 30 days of the judgment in accordance with Section 79 G of the Civil Procedure Acts was for only 2 months when the application for extension was filed on 5/1/2022. I do not find the delay inordinate and the explanation that the applicant delayed in giving instructions to counsel to appeal the decision is reasonable. Further, the court accepts the principle that mistake of counsel shall not be visited upon the applicant, even if the allegations of counsel’s default in filing submissions and attending court for judgment are accepted.

6. The Respondent’s ability to refund the decretal sum has not been addressed by the Respondent and the court must accept that there is a danger of substantial loss if the full amount of Ksh, 1,350,000/= general damages and special damages of Ksh. 46,035 were paid in execution of the decretal sum.

7. However, the court notes the innocent Party’s right to the enjoyment of her judgment especially in the personal injury claim and would consider the release of part of the decretal sum to the Respondent and the deposit into court of a Bank Guarantee for the balance to meet the justice of the case.

Orders

8. Accordingly, for the reasons set out above, the court makes  the following orders:-

(1) The applicant’s application dated 5/1/2022 is granted in terms of prayer Nos. 3 and 5 of the Notice of Motion on conditions set out hereinbelow.

(2) The applicant shall pay to the Respondent the sum of Kshs. 400,000/= within the next 14 days.

(3) The Applicant shall file into court a Bank Guarantee for the payment of the balance of the decretal sum of Ksh. 996,035 together with interest and costs within said 14 days.

(4) In default of the order Nos. (2) and (3) above, the grant of the order of stay of execution shall lapse and be of no effect.

Orders accordingly.

DATED AND DELIVERED THIS 10TH DAY OF MARCH 2022.

EDWARD MURIITHI

JUDGE

Appearances

Ms. Mwangi for Ms. Laboso for the Applicant.

Mr. Kitheka for the Respondent.