Vivid Printing Equipment Solutions Limited v Monicah Ngongoo t/a Identity Partner [2017] KEHC 1228 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISC. APPLICATION NO. 242 OF 2017

VIVID PRINTING EQUIPMENT

SOLUTIONS LIMITED...................................APPELLANT

VERSUS

MONICAH NGONGOO T/A

IDENTITY PARTNER...................................RESPONDENT

RULING

The respondent herein has a judgment in her favour against the applicant delivered by the lower court on 18th April, 2017.  The applicant was aggrieved by the said judgment but failed to file an appeal in time.  There is now before me an application by way of Notice of Motion dated 20th June, 2017 seeking orders that the intended appeal be admitted out of time and that there be a stay of execution of the lower court judgment and subsequent decree by the lower court pending the hearing and determination of the intended appeal.

There is a supporting affidavit sworn by an Engineer with the applicant alongside grounds set out on the face of the application.  There is a replying affidavit sworn by the respondent opposing the orders sought by the applicant.  There is also a written submission attached to the respondent’s affidavit and some cited authorities.

Counsel appearing for the parties agreed that the ruling be based on matters set out in the affidavits.  On my part I have considered the material placed before me.  The respondent has a valid judgment but also the applicant has a right of appeal.  The delay in filing the appeal from the date of the judgment has in my view been satisfactorily explained.

From the date of the Judgment to the date of the application before me, there is a period of about 60 days.  The affidavit in support of the application contains plausible reasons for the delay.  Granted that the judgment is based on a commercial transaction, no serious prejudice has been alleged by the respondent in the event the orders sought are granted.

It is a cardinal principle that justice looks at both sides, therefore the order that commends itself in the circumstances of this case is that the applicant is hereby allowed to file the appeal out of time.  The memorandum of appeal shall be filled within fourteen (14) days from today.  There shall be a stay of execution provided the applicant shall deposit the entire decretal sum in an interest earning account in the names of both advocates herein within 14 days from today.  In default of the two conditions above, execution shall proceed.

The costs shall be in the appeal.

Dated, signed and delivered at Nairobi this 7th Day of November, 2017

A. MBOGHOLI MSAGHA

JUDGE