Bora Partners Limited & another v Wambua [2022] KEHC 12906 (KLR)

Bora Partners Limited & another v Wambua (Miscellaneous Application E398 of 2021) [2022] KEHC 12906 (KLR) (Civ) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12906 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E398 of 2021

DO Chepkwony, J

June 17, 2022

Between

Bora Partners Limited

1st Applicant

Joseph Njoroge

2nd Applicant

and

Joel Kiilu Wambua

Respondent

Ruling

1. This is a ruling to determine the applicant’s notice of motion application dated August 13, 2021 in which the applicantseeks for the following orders:-a.Spent;b.That this honourable court be pleased to grant the applicants leave to file a memorandum of appeal out of time;c.Spent;d.That this honourable court be pleased to order stay of execution of the judgment issued by the honourable trial court on June 11, 2021 pending hearing and determination of the intended appeal.e.Spent;f.That the costs of this application abide the outcome of the appeal.

2. The grounds adduced in support of the application are set out on its face and the supporting affidavit sworn by Joseph Njoroge. According to the applicants, they are aggrieved by the decision delivered on June 11, 2021 finding the appellants 90% liable as against the respondents and awarding Kshs 180,000/= as general damaged for the respondent. They find the award was inordinately high. It is also their position that no prejudice would be suffered by therespondent if they are allowed to appeal against the said decision out of item given that the appellants arewilling to furnish security in the form of a bank guarantee for the entire decretal sum. Further, theapplicants have through the 2nd applicant deposed that they were unable to obtain a copy of the judgment on time hence the delay in filing the appeal but the memorandum of appeal raised an arguable case with high chances of success.

3. The respondent on the other hand opposed the application by filing grounds of opposition dated October 5, 2021. A summary of the grounds advanced is that after the delivery of the judgment by the trial court on June 11, 2021, the appellant undertook no effort to lodge an appeal. And even in the instant application, the applicant has not adduced any plausible explanation as to the delay in filing an appeal. The respondent thus deems the application as frivolous and only meant to deny his the enjoyment of the fruits of his successful Judgment.

4. Directions were then issued for the application to be canvassed by way of written submissions. At the time of writing this ruling, the record shows that only the respondent’s submissions dated February 2, 2022 were in the court file. Those submissions reiterate the grounds of opposition as shown above with a further reliance on the case of Serephen Nyasani Menge vs Rispah Onsase[2018[eKLR, where the court dismissed an application for extension of time for failure by the applicant to advance sufficient cause for the delay in filing an appeal.

Analysis and Determination 5. I have considered the said application, theaffidavit sworn in support thereof, thegrounds of opposition and the submissions filed by therespondent as well as the law. I am of the view that the main issues for determination are:a.Whether the application has any merit regarding the prayer for leave out of the statutorily stipulated period, andb.Whether an order forstay of execution of decree of the lower court pending the hearing and determination of the intended appeal can issue.

6. Section 79G of the Civil Procedure Act provides on the statutory period for filing an appeal from the judgment or decree of a subordinate court to the High Court and it reads as follows:-79G.“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, excluding from such period any time which 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.”

7. Without much ado, I wish to start by pointing out that it is a common ground among the parties that thejudgment in thelower court was delivered on June 11, 2021 and the instant application was filed on August 13, 2021which is beyond the thirty (30) days stipulated under section 79G of the Civil Procedure Act by a period slightly over one month. The explanation adduced in the supporting affidavit is that the applicants were unable to obtain the copy of thejudgment to enable them to come to a conclusion on the next step and that by the time they received the said Judgment, the time for lodging the appeal had lapsed.

8. In any event, the conditions set out under section 79G and which should be considered in deciding whether or not to grant extension of time to file an appeal are; the length of the delay, the reason for the delay, possibly the chances of success of the appeal if the application is granted, and finally, the degree of prejudice to the respondent if the application is granted. See also the Court of Appeal decision in the case of Thuita Mwangi vs Kenya Airways Ltd[2003]eKLR.

9. The length of delay in this case as explained above is slightly over a month and can only be pronounced as inordinate or not in view of the explanation offered by the applicants. In that respect, the applicants’ case is that they were unable to obtain a copy of the judgment on time hence the delay. I am considerate that the delay in the supply of a copy of the judgment is a factor way beyond the control of the applicant and sufficient reason for the court to exercise its discretion in favour of the applicants. Thus, looking at the reason for delay adduced in its totality, I am of a contrary view of that of therespondent that the application is frivolous and aimed to defeat his right to enjoy the fruits of his judgment. In any case, I do not find the period of delay for a period slightly over one month inordinate in circumstances where the court registry contributed to the delay by supplying a copy of the judgment after the time for appeal had lapsed. In the resultant, this court is convinced that the delay is not inordinate and the explanation for the delay is sufficient to warrant exercise of the court’s discretion in theapplicant’s favour.

10. On the issue of whether the intended appeal is arguable, my view is that the appellants only have the onus to prove the arguability of the appeal as opposed to persuading the court that the intended appeal has high probability of success. A demonstration that the appellants have plausible and conceivably persuasive grounds of either facts or law to overturn the original verdict is thus sufficient. I have perused the draft memorandum of appeal Showing that the intended appeal is aimed at challenging the award on quantum for being inordinately high. In my view, that is an arguable ground of appeal and believe that the applicants have discharged this burden. Accordingly, I exercise the liberty and grant the appellants leave to file the intended appeal out of time.

11. Now moving to the second prayer, on the issue ofstay of execution pending the determination of appeal, order 42 rule 6(1) of theCivil Procedure Rules, 2010 stipulates the conditions in which stay of execution may begranted. It provided that anapplicant inan application for stay must satisfy the court that he/she stands to suffer substantial loss if Stay is not granted, that the application had been filed without unreasonable delay and that the applicant is willing to offer such security as may be ordered by the court.

12. In this case, the applicants submitted that unless stay is granted, the respondent may proceed with execution thus rendering the intended appeal nugatory. To balance the interests of both parties, the appellants aver that they are willing to avail security in the form of bank guarantee for the entire decretal sum. The respondent on the other hand states that the application is geared to defeat his right to enjoy the fruits of a successful Judgment.

13. In my view, the fact that the process of execution is likely to be put in motion does not by itself amount to substantial loss as that averment by the appellants isbased on mere speculations. I am therefore not persuaded that the applicants have sufficiently established that they are likely to suffer any substantial loss.

14. I have addressed the issue of delay in the preceding paragraphs which I do not wish to repeat here. I then proceed to the third element for stay of execution which is the willingness to provide security. In the affidavit in support of the application, the applicants have stated that they are willing to offer security in form of a bank guarantee to cover the entire decretal sum. However, what is required is for the applicant to show the willingness to provide security but not to dictate the terms of the security to court. It is for the court to order the terms of the case while considering the interests of all the parties involved. In doing so, the court is not to be seen as punishing the applicant but enforcing the ideal purpose of the security which is to guarantee the due performance of such a decree as may ultimately be binding on the applicant.

15. In the instant case, I have not seen prejudice beyond the monetary compensation which the respondent may suffer if the appellants are allowed to exercise their cherished right of appeal without the fear of facing execution. Therefore, to balance the appellants’ right to appeal and the respondents right to enjoy the fruits of a successful Judgment, the court should order for provision of security equivalent to the amounts in the decree.

16. In the end, the appellants’ notice of motion application dated August 13, 2021 be and is hereby allowed in the following terms:a.That the period for which the intended appeal is to be lodged be and is hereby extended by further thirty (30) days from the date hereof within which period the memorandum of appeal as well as the record of appeal to be filed.b.That pending the hearing and determination of the intended appeal, there shall be stay of execution of the Judgment and decree in Milimani CMCC No 9220 of 2019 delivered on June 11, 2021 on condition that the appellants deposit the decretal sum of Kshs 180,000/= in an escrow interest- earning account in the joint names of the counsels on record for appellants and the respondent within thirty (30) days from the date hereof.c.Failure to comply with order (b) above, the stay order hereby granted shall automatically stand discharged and the respondent be at liberty to execute.d.Costs of the application shall be in cause of the appeal.It is hereby so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED IN NAIROBI THIS 17TH DAY OF JUNE, 2022. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Morara counsel for ApplicantM/S Mia counsel for Mr. Itonga counsel for RespondentCourt Assistant - Kevin