Peter Gacheru Njoroge v Benard Mwangi (Legal representative of the Estate of the late JOHN NJENGA KIARIE) [2017] KEHC 5552 (KLR)

REPUBLIC  OF  KENYA

IN  THE  HIGH COURT  OF  KENYA  AT  NAKURU

CIVIL APPEAL NO.  38 OF  2017

PETER GACHERU NJOROGE............................................ APPELLANT

VERSUS

BENARD MWANGI ......................................................... RESPONDENT

(Legal representative of the Estate of the late JOHN NJENGA KIARIE

(An appeal from the judgment and decree of Honourable B. Mararo PM in Nakuru CMCC  NO. 772 of 2015 delivered on the 22nd February, 2017)

RULING

1. By his application dated the 4th April 2017 the applicant Peter Gatheru Njoroge sought leave of the court to lodge an appeal from the judgment and decree in Nakuru CMCC No. 772 of 2015 delivered on the 22nd February 2017 out of time and that the Memorandum of Appeal filed herewith with on the 4th April 2017 be deemed to be properly on record. Application is brought under Section 79 and 95 of the Civil Procedure Act. It is further  sought an order of stay of  execution of the said Judgment and decree pending hearing and determination of the intended appeal.

2. In support of the application are grounds stated on the face of   the said application and upon a supporting affidavit sworn by one Kinyua Penina Wanjiku an advocate and legal officer at Britam General Insurance Company Limited, the insurer of  the  accident Motor vehicle KAU 320N.

3. The application is opposed by a Replying Affidavit sworn by  the Respondent Bernard Mwangi on the 10th April 2017.

4. I have considered reasons for the  delay in filing the intended appeal within the time lines allowed under the civil procedure  Act and Rules and objections raised by the respondents.

The decretal sum  awarded by the trial court is Kshs 470,400/.   Issue of  liability at 100% against the applicant is  contested in the proposed appeal and so  is the issue of dependancy under the Fatal Accidents Act, the Respondent being  a brother to the deceased.

5.  The judgment of the trial court is dated 22nd February 2017 and the application was brought on the 4th April 2017, twelve days outside  the 30 days period  allowed for lodging an  appeal.  The reasons  given for the delay are not persuasive but I do not find it too inordinate  in the circumstances.

The applicant is willing and ready to deposit sufficient security for the performance   of the decree.  It is proposed by the respondent that if the orders sought are allowed   that 50% the decretal sum be paid out to the respondent and the balance be  deposited in court.

6.     I have considered the case Iisan Enterprises Ltd -vs- Fredrick Muia Peter(2016) e  KLR cited by both parties.  Other then stating that the respondent may not be   able to repay back the  decretal sum should the intended appeal be successful, no prove was tendered in support of the allegation. Likewise the respondent with whom the burden  of prove that   he would be able t repay the money back failed to discharge that burden.

7.     I have considered the intended grounds of appeal.  It is not the duty of the court to  look at the merits or demerits of the appeal but but a casual perusal shows some  arguable grounds .

8.       There being no serious contestation on the extension of time and leave to lodge the appeal out of time, I am persuaded to  allow and grant leave  to the applicant to  file  it out of time.

The already filed Memorandum of appeal  dated 30th March 2017 is hereby deemed as  properly on record.

9.       Further, I allow a stay of execution of the decree of the trial court but upon terms  that the appellant shall pay 50% of the  decretal sum to the respondent within 30 days and the balance (50%) be deposited in court also within the period of 30 days  from the date of this  ruling.

In default, the order of stay of execution shall lapse.

Costs in the cause.

Dated, Signed and Delivered  this 4th day of May 2017

J. N. MULWA

JUDGE