Michael Murage v Dorcas Atieno Ndwala [2017] KEHC 4106 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL MISC. APPL.  NO. 209  OF 2017

MICHAEL MURAGE .........................APPELLANT/APPLICANT

-V E R S U S –

DORCAS ATIENO NDWALA..........RESPONDENT/RESPONDENT

RULING

1. Dorcas Atieno Ndwala, the respondent herein, filed an action against Michael Murage, the appellant herein and three others before the Chief Magistrate’s Court, at Milimani in Nairobi.  The suit was heard and in the end, judgment was entered in favour of the respondent in the sum of kshs.2,315,794/=.  The appellant was aggrieved against the decision on liability and quantum by the trial court, consequently he preferred this appeal.

2. The appellant/applicant has now taken out the motion dated 25th May 2017, the subject matter of this ruling, in which he sought for the following orders:

1. THAT this application be certified urgent and be heard ex-parte and service of the application be dispensed with in the first instance.

2. THAT there be interim stay of execution of the decree in C.M.C.C NO. 663 of 2013 Nairobi Milimani pending the hearing and determination of this application in the first instance.

3. THAT the honourable court be pleased to grant the applicant leave to file appeal against the lower court judgment out of time.

4. THAT the attached Memorandum of Appeal be deemed as duly filed upon payment of court fees.

5. THAT there be stay of execution of the decree herein pending the hearing and determination of the intended appeal against the judgment and order of the honourable magistrate.

6. THAT cost of this application be provided for.

3. The motion is supported by the affidavit of Ann Wayamba. When served with the motion, the respondent filed the replying affidavit of Nelson Kaburu Felix to oppose the same.

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.  The appellant has basically sought for following orders interalia:  First, is an order for stay of execution of the decree issued by the trial court pending the hearing and determination of the intended appeal.  Second is an order for leave to  file the appeal out of time.

5. In the circumstances of this case it is important to first  consider the application for leave to file the appeal out of time.  The applicant stated that he had a good and sufficient cause for not filing the appeal in time, in that the trial court’s judgement was delivered without notice to the parties and neither did the respondent’s advocate serve the applicant with notice of entry of judgement.  He was made aware by the respondent’s demand for payment of the decretal sum.  The applicant  has argued that if he will be denied leave to file the appeal out of time, he will be denied justice and his constitutional rights infringed.  Further to this, he states that he is ready to  abide by conditions which the court may impose.

6. The respondent on the other hand is arguing that the applicant has not enjoined other defendants(appellants) to the  application before court in the intended appeal yet they are directly affected by these proceedings which makes the application incompetent and should be dismissed with costs.  The respondent further argues that judgment was given on notice to the parties and the delay has not been well explained by the applicant.

7. The principles to be considered in determining an application for leave to file an appeal out of time are well stated under Section 79G of the Civil Procedure Act 2010 that:

“Every appeal from a subordinate court to the High Court shall be filed within a period of 30 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 court that he had good and sufficient cause for not filing the appeal on time.”

and were further reiterated in the case of Leo Sila Mutiso =vs= Rose Hellen Wangari Mwangi Civil Application no. 255 of 1997 Nairobi (Unreported)where the court stated that:

“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary.  It is also well settled that in general, the matters which this court takes into account in deciding whether to grant an extension of time are; first the length of delay, secondly, the reason for delay, thirdly possibly the chances of the appeal succeeding if the application is granted and fourthly, the degree of prejudice to the respondent if the application is granted.”

8. The court went ahead to reiterate these principles in the case of

Fakir Mohamed =vs= Joseph Mugambi and 2 others (2005) eKLR      where it was stated that:

“............... courts discretion in granting leave to appeal out of time is unfettered, there is no limit to the number of factors the court would consider, so long as they are relevant................)”

9. The first principle is that: the period of delay in filing an appeal should be reasonable.  It is clear on the record that judgment was entered on 26. 01. 2017 and the proposed Memorandum of Appeal dated 25. 5.2017.  The applicant states that she attempted negotiations in lieu of appeal to reduce the decretal amount but never got any response from the respondent hence time to lodge the appeal lapsed in the process.  The appellant is of the view that the delay was reasonable and excusable in the circumstances.

10. The respondent in his reply stated that the delay by the applicant has not been explained.

11. Having considered the material placed before this court and the rival submission, I am convinced that the applicant has shown sufficient reason for the delay.

12. In the end, the order for leave to file the appeal out of time is granted.

13. Having determined the application for leave, let me now consider the application for stay of execution.  The applicant avers that the respondent may execute the decree any time unless an order for stay is granted thus causing him substantial loss. The applicant further argued that if the decree is executed then the intended appeal will be rendered nugatory.  The respondent opposed the motion arguing that it will be unjust to stay execution entirely since the applicant is only 50% liable.  The respondent in her reply pointed out that she has been waiting for compensation since the time of the accident in 2011 and to deny her enjoyment of her judgment sum is prejudicial to her.  The applicant has not shown the substantial loss he is likely to suffer.

14. The principles to be considered in determining an application for stay are well stated 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.

15. On the first principle, the appellant/applicant is of the view that it would suffer substantial loss if the order for stay is denied because there is no evidence that if the respondent is paid the decretal sum he would be in a position to refund if the appeal turns successful.  The respondent did not answer this issue in his reply to the motion.  He did not demonstrate that he is a person of means.  With respect, I am convinced that the appellant has shown that it would suffer substantial loss if the order for stay of execution is denied.

16. The second principle is that the application should be filed without unreasonable delay.  It is apparent on record that this application was filed on 25th May 2017.  Despite judgment being entered on 26/1/17, the applicant came to know of the existence of the judgment on 6/4/17.  There is  proper explanation by the applicant as to why the application was not immediately filed.  There were negotiations to settle the matter out of court which did not materialise.

17. The third principle is the provision of security for the due performance of the decree.  The appellant  proposes to deposit the decretal sum.  The respondent on the other hand is proposing that if this court is inclined to grant the order for stay, then the same should be done bearing in mind that the applicant is only liable to 50% (one half) as his apportioned share of blame.  On my part, I think a fair order on the issue touching on the security, is to direct which I hereby do, that the appellant deposits the decretal sum of ksh.2,315,794/= in an interest earning account in the joint names of the advocates and or firms of advocates within 30 days from the date hereof.

18. In the end, the order for stay is granted on condition specified hereinabove.  Costs of the motion to abide the outcome of the appeal.

Dated, Signed and Delivered in open court this 14th day of July, 2017.

J. K. SERGON

JUDGE

In the presence of:

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

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