George Kinanga Atancha & another v Joseph Omondi Wau [2017] KEHC 2388 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL MISC. APPL.  NO. 119  OF 2017

GEORGE KINANGA ATANCHA ........................................1ST APPLICANT

DAIMA CONNECTIONS LTD ...........................................2ND APPLICANT

-V E R S U S –

JOSEPH OMONDI WAU......................................................RESPONDENT

RULING

1) Joseph Omondi Wau, the respondent herein, filed a compensatory suit before the Chief Magistrate’s Court, Milimani Commercial Court, Nairobi against George Kinanga Atancha and Daima Connections Ltd, the 1st and 2nd applicants respectively, for the injuries he suffered in a road traffic accident he was involved on 17/4/2013.  The suit was heard and determined in favour of the respondent by Hon. D. O. Mbeja (Mr) learned Senior Resident Magistrate.  The respondent was awarded ksh.375,000 and ksh.2,500/= as general and special damages respectively, plus costs and interests at court rates.  Being aggrieved by the aforesaid decision, the applicants have now filed the current motion with the intention of eventually filing an appeal to impugn the judgement.

2) The applicants have now taken out the motion dated 23/3/17 to the subject matter of this ruling in which they sought for the following orders:

1. THAT this application be certified as urgent and be heard ex parte in the first instance.

2. THAT this honourable court be pleased to stay execution of the Decree issued pursuant to the judgment delivered on 6th February 2017 in Milimani CMCC No. 6996 of 2013: Joseph Omondi Wau vs. George Kinanga Atancha & Another pending the hearing and determination of the application herein.

3. THAT this honourable court e pleased to grant leave to the applicants to appeal out of time against the judgment of the honourable D. Mbeja (Senior Resident Magistrate) delivered on 6th February 2017 in Milimani CMCC CMCC No. 6996 of 2013: Joseph Omondi Wau vs. George Kinanga Atancha & Another.

4. THAT the costs of this application abide the outcome of the intended appeal.

3) The motion is supported by the affidavit of Pauline Waruhi., When served, the respondent filed a replying affidavit he swore to oppose the motion.

4)  I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the application.  I have also considered the rival submissions.

5) It is clear from this motion that the applicants are seeking for two orders.  First is that for leave to file their appeal out of time and secondly, an order for stay of execution.

6) Let me first consider the application for leave to file an appeal out of time.  The applicants aver that they failed to appeal within the statutory  period of 30 days and that they have a good and sufficient cause for not filing the appeal in time.  They state that their right to appeal will be infringed if leave to appeal out of time is not granted.  The applicants further argue that they are ready to make an undertaking on security and to abide by any conditions which the court may set pending the hearing and determination of the intended appeal.  The applicants state that the advocate who had the conduct of this matter, Mr. Eric Mutua prepared the memorandum of appeal on time, but was taken seriously ill on or about 6th March, 2017.  For this reason, the colleague who took over the matter in the interim was not informed of the memorandum of appeal that was left pending filing.  That subsequently, the advocate who had the conduct of this matter reported back to work on 9th March 2017, when the time to appeal had already lapsed.  The applicants aver that the delay was inadvertent on their part they should not be penalized for the mistakes of their advocate.

7) The respondent on the other hand argues that the affidavit in support of the applicants application is  not truthful. The respondent further states that the delay has not been reasonably explained. For this reason therefore the application should be rejected.

8) The principles that guide a court in considering an application for leave to file an appeal out of time were restated by the Court of Appeal in the case of Stanley Kahoro Mwangi & 2 others =vs= Kanyamwi Trading Company Limited 2015 eKLRinter alia:

“The principles guiding the court on an application for extension of time are well settled and there are several authorities on it.

The principles are to the effect that the powers of the court in deciding such an application are discretionary and unfettered.  It is therefore upon an applicant to explain to the court that he is entitled to the discretion being exercised in his favour.” Whereas in the case of M/s PortReitz Maternity =vs= James Karanga Kabia, Civil Appeal No. 63 of 1997, it was held that:

“The right of appeal must be balanced against an equally weighty right, that of the plaintiff to enjoy the fruits of judgment delivered in his favour.  There must be a just cause of depriving the plaintiff that right.”

9) The applicants therefore have to place sufficient material before the court which would explain why there was delay in filing the appeal.  The court has to balance the competing interests of the applicant with those of the respondent.  There is no limit to the number of factors the court would consider, so long as they are relevant. However, the main principles that guide the court in such an application are: first, the period of delay, secondly, the reason for the delay, and thirdly the degree of prejudice to the applicant if the application is granted.  Having considered the material placed before this court and the rival arguments, I am convinced that the applicants have given this court sufficient explanation for their delay in filing the appeal in time.  The delay in my view is explained and excusable.

10)  Having determined the application for leave to appeal out of time let me now consider the prayer for order for stay of execution.  The principles to be considered in determining an application for stay are set out under Order 42 of the Civil Procedure Rules.  First, an applicant must show the substantial  loss it would suffer if the order for stay is denied.  Secondly, the application for stay should be filed without unreasonable delay.  Thirdly, that the court should consider the provision of security for the due performance of the decree.

11) The 1st  principle to be considered is the substantial loss the applicant may suffer if the order for stay is denied. The applicants herein have stated that they stand to suffer substantial loss and damage, in that there is a likelihood that the applicants will be unable to recover the decretal sum awarded from the respondent thus rendering the applicants intended  appeal nugatory.  This assertion is controverted by the respondent.

12)  On the second principle is that the period of delay in filing the application for stay should be reasonable.  It is clear on the record that judgment was entered on 6th February 2017 and the motion filed on 23/3/17. The delay is not inordinate.

13) The third principle is the provision of security.  A fair order is to direct that the decretal sum of 377,500/= be deposited.

14)  In the end, the motion is allowed as follows:

1. The applicants are granted leave of 15 days to file an appeal out of time.

2. The applicant is also granted an order for stay of execution of the decree pending the filing and determination of the intended appeal on condition that the applicant deposits the decretal sum of ksh.377,500/= in an interest earning account in the joint names of learned counsels and or firms of advocates within 30 days from the date hereof.

3. Costs of the motion to abide the outcome of the appeal.

Dated, Signed and Delivered in open court this 6th day of October, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................for the Applicant

.................................................for the Respondent