Victoria Nthenya Mangenge v Eric Mule Masai & Fredrick Musyoki Phillip [2022] KEHC 1310 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HC. MISC. CIVIL. APPLICATION NO. E008 OF 2021

VICTORIA NTHENYA MANGENGE.......................................APPLICANT

-VERSUS-

ERIC MULE MASAI.........................................................1ST RESPONDENT

FREDRICK MUSYOKI PHILLIP..................................2ND RESPONDENT

RULING

1. Before me is an application by way of Notice of Motion dated 9th February 2021 filed under Order 50 Rule 6, Order 51 of the Civil Procedure Rules as well as section 1A, 3A and 79G of the Civil Procedure Act (cap.21), seeking five (5) orders, some of which have been spent as follows –

1) (Spent)

2) That leave be granted to the applicant to appeal (out of time) the judgment in Tawa SRMCC 158 of 2019 delivered on 17th November 2019.

3) That the courts do extend the time within which to file an appeal from the judgment in Tawa SRMCC 158 of 2019 delivered on 17th November 2019.

4) That the annexed memorandum of appeal be deemed as properly filed upon payment of the requisite court fees.

5) The costs of the application be in the cause.

2. The application has  grounds on the face of the Notice of Motion that judgment was delivered with a total figure of damages of Kshs.100,000/= and that the applicant is dissatisfied with the amount of the award. That the time for filing appeal had lapsed because the advocate received instructions late, and that the applicant wishes to lodge and prosecute their appeal in the matter.

3. The application was filed with a supporting affidavit sworn by Victoria Nthenya Mangenge the applicant, in which the draft memorandum of appeal is annexed. It is deponed in the affidavit that the respondent will not suffer prejudice if the leave to appeal out of time and stay of execution orders are granted.

4. The application is opposed through a replying affidavit, sworn by the 1st respondent Erick Mule Masai in which it is deponed that the intended appeal is frivolous and that the applicant has not given good reasons why they did not file appeal within the stipulated statutory time frame.

5. In response to the replying affidavit, the applicant filed a further affidavit she swore on 17th March 2021 in which she deponed that the application was filed only 12 days after the lapse of the statutory time allowed for filing of appeal.

6. The application was canvassed through the filing of written submissions. In this regard, I have perused and considered the written submissions filed by B.M Mungata & company for the applicant and Kinyua Njuguna & company for the respondents. I note that both sides relies on decided court cases.

7. This is an application for leave to file an appeal out of time, as well as an application for stay of execution of judgment or decree pending determination of appeal.

8. With regard to extension of time to file appeal, section 79G of the Civil Procedure Act (cap. 21) is relevant and provides as follows –

79G. 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 from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant 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”

9. In the present case, the delay was for less than a month. The applicant has explained that there was a delay in giving instructions to the advocate. I note that the intervening period fell within Christmas and New Year’s festivities and the High Court’s vacation.

10. In my view, the delay not being inordinate, and with  the explanation given by the applicant for the delay, this court can be persuaded to grant extension of time to file an appeal in terms of the overriding interest in section (A),  B and & 3A of the Civil Procedure Act (cap.21), as I find that the intended appeal is not frivolous.

11. With regard to whether this court should grant stay of execution, Order 42 Rule 6(2) of the Civil Procedure Rules applies. The said rule states as follows –

6(2) No order for stay of execution shall be made under sub-rule (1) unless –

(a) The court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delays, and

(b) Such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.

12. The court has unfettered discretion in granting orders of stay of execution. The applicant has stated in the further affidavit that the amount of damages awarded is not commensurate with the injuries suffered. In that situation, I will grant stay of execution.

13. However, as the intended appeal merely relates to quantum of damages, I will order that stay orders be granted subject to the respondent being paid part of the decretal amount.

14. Consequently and for the above reasons, I order as follows –

1) I extend the time for filing appeal herein. The appeal will be filed within 14 days from today.

2) Stay of execution of decree or judgment is granted, subject to the applicant paying the respondentthrough counsel part of the decretal amount of Kshs.50,000/= within 30 days from today.

3) In default the payment of the amount in (2) above within 30 days, the stay orders herein granted will automatically lapse.

4) The costs of application will follow the decision in the appeal.

DELIVERED, SIGNED & DATED THIS 23RD DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI.

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

GEORGE DULU

JUDGE