Cool Limited v Ng'ang'a t/a Chenga Auto Hardware [2023] KEHC 25347 (KLR)

Cool Limited v Ng'ang'a t/a Chenga Auto Hardware (Miscellaneous Civil Application E034 of 2023) [2023] KEHC 25347 (KLR) (15 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25347 (KLR)

Republic of Kenya

In the High Court at Voi

Miscellaneous Civil Application E034 of 2023

GMA Dulu, J

November 15, 2023

Between

Cool Limited

Applicant

and

Patrick Chege Ng'ang'a t/a Chenga Auto Hardware

Respondent

Ruling

1. Before me is an application dated 21st June 2023 by way of Notice of Motion brought under Section 1A, 1B, 3A, 63, 79, 79G of the Civil Procedure Act (Cap.21), and Order 42, 50, and 51 of the Civil Procedure Rules, as well as Section 57, 58 and 59 of the Interpretation and General Provisions Act.

2. The prayers in the application are as follows:-1. (Spent).

2. (Spent).

3. That there be a stay of execution of the judgment and the consequential decree arising from the judgment delivered on 8th March 2023 by Hon. C. Kithinji Principal Magistrate in CMCC E019 of 2022 Voi pending hearing and determination of the intended appeal.

4. That the applicant be granted leave to file an appeal out of time against the judgment and decree delivered on 8th March 2023 by Hon. C. Kithinji – PM in CMCC E019 of 2022 at Voi.

5. That costs of the application be provided for.

3. The application has grounds on the face of the Notice of Motion that the applicant is desirous to appeal, and the respondent had on 15th June 2023 written a letter demanding payment of Kshs. 1,561,890/= and threatened execution.

4. The application was filed with a supporting affidavit sworn on 21st June 2023 by Collins Mwariri a director of the applicant amplifying the grounds of the application, and annexing a number of documents.

5. The application is opposed through Grounds of Opposition dated 7th July 2023 filed by Nyakoni Ratemo Advocates for the respondent in which it was stated that the application is an abuse of court process and has been brought too late in the day.

6. The application has also been opposed through a replying affidavit sworn on 7th July 2023 by Patrick Chege Nganga the 1st respondent in which it was deponed that the application lacks merits and is an abuse of the process of the court.

7. In response to the replying affidavit, the applicant filed a further affidavit sworn by Collins Mwariri on 21st July 2023 in which it was deponed that the issues raised in the draft Memorandum of Appeal, deserve consideration and determination by this court.

8. The application was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by Wokabi Mathenge & Company Advocates for the applicant and Nyakoni Ratemo & Company Advocates for the respondent. I have to acknowledge here that each side relied upon decided court cases.

9. With regard to the request for enlargement of time to file appeal, Section 79G of the Civil Procedure Act (Cap.21) is relevant. It provides, inter alia, as follows:-“…..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 reason or cause for not filing the appeal in time.”

10. What reason has the applicant given herein for the delay in filing appeal? The most important reason given was the death of the former advocate Mr. Wachira who passed away in May 2023 after having applied for copy of typed proceedings and judgment.

11. In my view therefore this application filed on 23rd June 2023 was not filed after inordinate delay, and the reasons given for the delay in filing appeal are valid. I will extend time to appeal.

12. With regard to the request of stay of execution of judgment or decree pending appeal, Order 42 Rule 6 of the Civil Procedure Rules applies, especially Rule 6(2) which states that:-No order of stay shall be made under sub-rule (1) unless:a.The court is satisfied that substantial loss may result to the applicant unless the order is made and the application has been made without unreasonable delay.b.Such security as the court orders for the due performance of such decree or order as may be ultimately be binding on him has been given by the applicant.

13. With the facts and circumstances disclosed to me herein, I find that the application was filed without unreasonable delay.

14. Turning now to whether the applicant will suffer substantial loss if the stay orders sought are not granted, I note that this is a money decree on a claim for loss or damage of goods in transit, plus loss of business. In those circumstances, in my view the applicant is likely to suffer substantial loss if the stay orders sought are not granted, and the appeal later succeeds.

15. With regard to the applicant offering security, I note that the applicant has not indicated willingness to provide security. However, since this matter relates to a business transaction, I find no reason to order the applicant to deposit the decreed money in court.

16. Consequently, and for the above reasons, I allow the application and order as follows:-1. I enlarge time for the applicant to appeal. The appeal will be filed within 7 days from today.2. I grant stay of execution of judgment or decree pending determination of appeal.3. If the appeal is not filed within 7 days from today, the stay orders hereby granted will automatically lapse and be of no effect.4. I make no orders as to costs of this application.

DATED, SIGNED AND DELIVERED THIS 15TH DAY OF NOVEMBER 2023 AT VOI.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantMr. Mwamlachi holding brief for Mr. Mathenge for applicantMr. Ratemo for respondent