Oeba & another v Ombese [2022] KEHC 9796 (KLR)

Oeba & another v Ombese (Miscellaneous Civil Case E009 of 2020) [2022] KEHC 9796 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9796 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Miscellaneous Civil Case E009 of 2020

KW Kiarie, J

July 21, 2022

Between

Josephat Oeba

1st Applicant

Mombasa Khuishi Motors Co. Ltd

2nd Applicant

and

Alex Orora Ombese

Respondent

Ruling

1. The applicants moved the court by way of Notice of Motion dated 24th November, 2020. The application is brought under sections 3 & 3A of the Civil Procedure Act, Order 22 Rule 22, Order 42 Rule 6, Order 50 Rule 5, Order 51 Rule 1 & 3 of the Civil Procedure Rules. The applicants are seeking the following orders:a)That this application be certified urgent, service be dispensed with thereof and the same be heard ex parte in the first instance.[Spent]b)That pending the hearing and determination of this application inter partes, there be a stay of the execution of the judgment and/or decree of the Honourable B.O. Omwansa (PM) delivered on 21st October, 2020 in Oyugis PMCC No.55 of 2018; Alex Orora Ombese vs Joseph Oeba & Mombasa Khuishi Motors Ltd and all subsequent and incidental proceedings thereto.[spent]c)That the applicant be and is hereby granted leave to file and serve an appeal out of time against the judgment of the trial court delivered on 21st October, 2020 in terms of the annexed draft memorandum of appeal.d)That pending the hearing and determination of the applicant’s intended appeal, there be a stay of the execution of the judgment and/or decree of the Honourable M.O. Wambani (CM) delivered on 21st October, 2020 in Oyugis PMCC No.55 of 2018; Alex Orora Ombese vs Joseph Oeba & Mombasa Khuishi motors Ltd and all subsequent and incidental proceedings thereto.e)That upon grant of prayers No. 3 and 4 above, this honourable court be pleased to order that the applicant do provide sufficient security in the form of a suitable Bank Guarantee from a reputable financial institution to secure the judgment herein up to the applicant’s insurer’s maximum statutory limit of Kshs.3, 000,000. 000. f)That this honourable court to make any such further and/or other orders and issue any other relief it may deem just to grant in the I interest of justice.g)That the costs of this application abide the outcome of the intended appeal.

2. The application is premised on the following grounds:a)That on 21st October, 2020, judgment of kshs.3,102,052/- was entered in favor of the respondent as against the applicant vide Oyugis PMCC No. 55 of 2018; Alex Orora Ombese vs Joseph Oeba & Mombasa Khuishi Motors Ltd and 30 days stay of execution granted.b)That the aforesaid seven (30) days’ stay lapsed on 20th November, 2020 and the applicant is reasonable and justifiably apprehensive that the respondent will immediately move to execute against the applicant anytime from now.c)That the applicants counsels in conduct of the matter became unwell with covid during the stay period hence put under isolation and did not receive a copy of the judgment in time in order for them to advise their client to prefer an appeal as required by law.d)That the applicants are aggrieved by the judgment and particularly the trial court’s decision to award the Respondent a substantial and unjustified sum of kshs.3, 102,052/- without any justifiable cause and/or reasons and the applicant thus intends appeal against he said judgment however the period for filing such an appeal has since lapsed hence this application seeking extension of time to lodge an appeal.e)That the period for filing such an appeal has since lapsed and the applicant seeks the leave of this honourable court to file the said appeal out of time.f)That failure to file the appeal within time was not intentional as the same was occasioned by sickness on the part of counsels for the applicants and the same should not visited upon an innocent litigant.g)That the judgment herein is for a substantial sum of kshs.3, 102,052/- which if paid to the respondent and the intended appeal is successful, the applicant will not be able to recover the same from the respondent.h)That the intended appeal raises numerous and glaring arguable issues and or matters of law and fact and has high chances of success.i)That the applicant will suffer substantial and irreparable loss and damage if orders sought herein are not granted and the applicant’s indented appeal will thus be rendered nugatory.j)That the applicant is ready, willing and able to furnish such reasonable security by providing a sound Bank Guarantee from a reputable banking institution to secure the judgment up to the applicant’s insurer’s maximum statutory limit as provided for under insurance (Motor Vehicle Third Party Risks) Act Chapter 405 Laws of Kenya which security should be sufficient to secure the judgment.k)That the respondent will not be prejudiced in any way if the orders sought herein are granted.l)That it is in the interest of justice that the execution of judgment and/or decree herein be stayed and leave be granted to the applicant to appeal out of time.m)That the respondent is a person of straw and will not be able to refund the decretal sum if they are allowed to execute and the intended appeal thereafter succeeds.n)That this application has been done without any unreasonable delay.

3. The application was opposed by the respondent on the following grounds:a)That it is intended to deny the respondent enjoyment of the fruits of the judgment.b)That the application is an abuse of the due process of the court.c)That the applicants have not explained the cause of delay.

4. In Velji Shahmad vs. Shamji Bros. and Popatlal Karman & Co. [1957] EA 438, it was held that:In the interests of the public the court ought to take care that appeals are brought before it in proper time and before the proper court or registry and when a judgement has been pronounced and the time for appeal has elapsed without an appeal the successful party has a vested right to the judgement which ought, except under very special circumstances, to be made effectual. And the Legislature intended that appeals from judgements should be brought within the prescribed time and no extension of time should be granted except under very special circumstances.

5. The applicant filed the current application 3 days after the time to file the appeal had lapsed. The explanation given was that the appeal window closed on November 21, 2020 which was a Saturday. I have checked the digital calendar and confirmed that it was so. This therefore means that the time to appeal lapsed on November 23, 2020 a day before the present application was filed. In the case of Njeri Njoroge v Joseph Maina Gichuhi & another [2018] eKLR the Court of Appeal (Odek JA) stated:Whether or not to grant extension of time depends on circumstances of each case. There is no limit to the number of factors that a court should consider in an application for extension of time, so long as they are relevant. Some of the factors to bear in mind include the period of delay; the reason for the delay; the degree of prejudice the respondent stands to suffer; justice should be administered without undue regard to procedural technicalities and that justice should not be delayed.

6. In my view, a delay by a day ought not to have been contested and therefore causing delay in the hearing of the intended appeal. This delay cannot be said to be inordinate.

7. I am inclined therefore to allow the application and order the applicant to file the memorandum of appeal together with the record of appeal within 14 days. Since parties agreed on the conditions of stay of execution 0n 15th June, 2022 this issue is spent.

8. Costs be in the cause.

DELIVERED AND SIGNED AT HOMA BAY THIS 21ST DAY OF JULY, 2022KIARIE WAWERU KIARIEJUDGE