Gichunge v Kairu & another (Suing as the Legal Representatives of Dennis Mutugi) [2022] KEHC 11787 (KLR) | Extension Of Time | Esheria

Gichunge v Kairu & another (Suing as the Legal Representatives of Dennis Mutugi) [2022] KEHC 11787 (KLR)

Full Case Text

Gichunge v Kairu & another (Suing as the Legal Representatives of Dennis Mutugi) (Miscellaneous Civil Application E005 of 2022) [2022] KEHC 11787 (KLR) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11787 (KLR)

Republic of Kenya

In the High Court at Chuka

Miscellaneous Civil Application E005 of 2022

EM Muriithi, J

June 16, 2022

Between

Sammy Mutwiri Gichunge

Appellant

and

Dinah Makena Kairu

1st Respondent

Samuel Gitaari

2nd Respondent

Suing as the Legal Representatives of Dennis Mutugi

Ruling

1. This is ruling on an application dated May 30, 2022 seeking leave of court for extension of time to lodge a memorandum of appeal against the judgment of the trial court in Chuka CMCCC No 190 of 2019 delivered on September 15, 2021, and for stay of execution of the judgment pending appeal.

2. Although duly served through his email at khanembu@gmail.com on June 3, 2022 as shown in the affidavit of service sworn by Muchiri Mutegi Advocate, the respondent did not file any response or attend court for the hearing of the application.

3. I have considered the application. From the draft memorandum of appeal attached to the application for leave it cannot be said that the intended appeal is frivolous or that it raises no arguable case both on the liability assessed at 100% and quantum of damages.

4. The decretal amount is substantial at Ksh 3,720,550/- and the court accepts that payment of the amount in settlement or execution of the decree might result in substantial loss if upon successful appeal the appellant cannot recover the amount paid from the respondent. As the respondent did not filed any response, I am not able to assess their ability, or otherwise, to refund the substantial amount of damages.

5. The delay of over 8 months before the filing of the application on May 31, 2022 was explained on the basis of ‘the applicant took a while to go through the judgment and to come up with an appeal strategy. A delay of 8 months to consider whether to file an appeal is inordinate, and it cannot support a request to interfere with the right of a successful party to enjoy the fruits of the judgment.

6. However, in interests of justice in having the appeal from the substantial award considered by an appellate court, the court will grant leave to file the appeal and a stay of execution of the judgment on conditions as to security for the payment of the decree as may become adjudged against the appellant on successful appeal.

7. The applicant offered to furnish a bank guarantee as security for the stay of execution. However, the court considers that as the appeal appears to be against the determination that the appellant is 100% liable and against the quantum awarded, a sum equivalent of 1/3 of the decretal sum should paid to the respondent, and the balance of 2/3 of the decretal sum be secured by an order for a bankers guarantee to be deposited with the court.

Orders 8. Accordingly, for the reasons set out above, the court makes the following orders:1. The applicant shall have leave of the court to file an appeal out of time, the memorandum of appeal shall be filed within the next fourteen (14) days.

2. There shall be a stay of execution of the decree of the trial court in Chuka CMCCC No 190 of 2019 pending hearing and determination of the appeal subject to conditions as part payment of the decretal sum and to provision of security.

3. The applicant shall pay the sum of Ksh 1,000,000/- being a round figure approximation of 1/3 of the decretal sum of Ksh 3,720,550/- and deposit with the court a bankers guarantee for the balance of the decretal sum, both within the next fourteen (14) days.

4. In default of the payment of the sum of Ksh 1,000,000/- and or deposit in court of the bank guarantee in order No 3 above, the order for stay of execution shall lapse and be of no effect.

9. Costs in the Cause.Order accordingly.

DATED AND DELIVERED ON THIS 16THDAY OF JUNE, 2022. EDWARD M. MURIITHIJUDGEAppearances:M/S Marienga & Co. Advocates for the Appellants.N/A for the Respondents.