James Musyoka Kasimu v Cornelius Musyoka Kasimu [2022] KEHC 1516 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HC. MISC. CC. APPLICATION NO. E030 OF 2021

JAMES MUSYOKA KASIMU..................................................................................APPLICANT

-VERSUS-

CORNELIUS MUSYOKA KASIMU...................................................................RESPONDENT

RULING

1. Before me is an  application by way of Notice of Motion dated 29th March 2021 seeking seven orders, some of which have been spent as follows –

1) (Spent)

2) That this court be pleased to extend time and grant leave to the applicant to lodge a memorandum of appeal out of time against the judgment and decree against the applicants by Hon. C.A Mayamba (Mr.) Principal Magistrate in Kilungu CMCC NO. 257 of 2019 given on 29/01/2021.

3) (Spent).

4) That this court be pleased to stay execution of the judgment and decree in Kilungu CMCC No. 257 of 2019 pending hearing and determination of the intended appeal.

5) (Spent)

6) That this court be pleased to issue any other orders that it may deem fit, just and expedient in the interests of justice.

7) The costs of this application be in the cause.

2. The application was filed with an affidavit sworn by Kevin Ngure advocate f or the applicant, in which it was deponded that the main reason for the delay in filing appeal was late receipt of instructions from the client (applicant). It was also deponed that the appeal is not frivolous and that the respondent will not suffer prejudice if stay orders are granted.

3. The application is opposed through a replying affidavit sworn by the respondent on 20th April 2021 in which it was deponed that the applicant failed to disclose the date when instructions were given to counsel, and had also not demonstrated that they will suffer substantial loss if stay orders are not granted.

4. The application was canvassed through filing of written submissions and in this regard, I have perused and considered the submissions filed by Kimondo Gachoka & company advocates for the applicant and those filed by Waiganjo Wachira & company advocates for the respondents. Both counsel agree that the intended appeal is on quantum of damages.

5. It is clear to me that under section 79G of the Civil Procedure Act, the court can extend the statutory time set for filing appeals. In this regard,  the said section provides 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 such period of time which the lower court may certify as having been requisite for the preparation and delivery 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.”

6. The applicant herein has stated that they inadvertently failed to give instructions to the advocate on time. I note that the period of delay before filing the application is less than a month. I will thus grant the extension of time to file the intended appeal.

7. I now turn to the request for stay of execution. The considerations to be taken by a court in determining an application for stay of execution of decree are codified under Order 42 Rule 6 of the Civil Procedure Rules. The said provisions of the Rules have been the subject of consideration in many decided court cases. In my view, it will suffice if I cite the case of John Mwangi Nderitu –vs- Joseph Ndiritu Wamathai (2016) e KLR relied upon by counsel for the respondent herein, in which the court stated as follows –

“It is clear from the wording  of Order 42 Rule 6(1), for an applicant to succeed in an application of this nature, he must satisfy the following conditions, namely (a) substantial loss may result to the applicant unless the order is made, (b) the application has been made without undue delay, (c) such security as to costs has been given by the applicant.”

8. In the present case, the contest on appeal is the quantum of damages awarded, which the applicant wants the high court on appeal to review. The applicant claims that if the decretal amount is paid to the respondent and the appeal succeeds, therespondent being a person of no known means, might not be able to refund the amount.

9. I note that the amount of general damages awarded is Kshs.180,000/=, but the applicant has not stated in the application or the supporting affidavit what figure of general damages would be reasonable. The applicant has however, offered to submit a bank guarantee as security in this application.

10. In my view, if stay of execution is not granted herein, the applicant is likely to suffer substantial loss because the respondent might not be able to repay the whole amount. Balancing the scales of justice, I will order that stay be granted but the applicant pays Kshs.90,000/= to the respondent

11. As for costs, costs will follow the decision in the appeal.

12. Consequently, I order as follows –

a) I extend time to the applicant to file appeal. The appeal will be filed within 14 days from today.

b) Stay of execution pending determination of appeal is granted, provided the applicant pays the respondent through counsel the sum of Kshs.90,000/= which is part of the decretal amount within 30 days from today.

c) In default of payment of Kshs.90,000/= within 30 days from today, the stay of execution orders herein granted will automatically lapse.

d) Costs of the application will follow the decision in the appeal.

DELIVERED, SIGNED & DATED THIS 16TH DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI.

............................

GEORGE DULU

JUDGE