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Misc Application No. E2006 of 2020. Garsen

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Misc Application No. E2006 of 2020. Garsen

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david omondi

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IN THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT GARSEN

MISCELLANEOUS CIVIL CASE NO. E006 OF 2020
PHOEBIAN REHEMA KALENGA ……………………..……
PLAINTIFF
VERSUS
RONALD WANJE JEMBE………………………………….DEFENDANT

RULING
This is an application by the defendant/applicant in Civil Suit No
49 of 2019 - Garsen in which he challenges, the outcome of the
suit in a judgment delivered by Hon. Kadima (PM)

The application is expressed to be under Section 1(A), 3, 3(A),

79(G) and 95 of the Civil Procedure Act, order 42 Rule 6, order 50
Rule 6, order 51 Rule 1 of the Civil Procedure Rule, seeking leave
of the court for an extension of time to file an appeal and
subsequent stay of execution. It is made on the grounds that the
Learned Trial Magistrate erred in fact and in law in awarding
excessive damages of ksh. 300,000 and therefore the need to
have it challenged on appeal. That the lapse of time provided
under Section 79(G) was occasioned by the Trial Court failure to
deliver judgment on due date and without notice to the parties,
that the order on stay of execution is aimed at not rendering the
intended appeal nugatory.

JMISC. CIVIL CASE NO. E006 OF 2020 1

The application is predicated on the affidavit evidence of Pauline
Waruhiu a legal officer at Direct Line Assurance Company, insurer
of Motor vehicle KAR 356N of the insured defendant/applicant.
The application was canvassed based on the affidavits filed by the
respective parties to the suit.

Determination

The broad perspective which the court ought to take into account
when dealing with applications of this nature are well captured, in
the cases of Salat & Independent Electoral & Boundaries
Commissions & 7 others (2014) SCK, Paul Wanjohi Waruinge v
Duncan Gichure (2013) EKLR, Leo Sila Mutiso v Rose Hellen Wangari

Mwangi (Civil Application No. 255 of 1997). These decisions concur

and identified the following principles a court should be guided by

when it comes to applications on extension of time.

(a) “Extension of time is not a right, it’s a discretionary

remedy. As a result, the aggrieved party has the burden
to give reasons for the delay. The court on the other
hand has to balance the reasons for the delay and the
length of it took to file the application, the prejudice
likely to be caused by the parties. The significance factor
on the merits of the proposed appeal”.

In the instant application, apparently, Learned Counsel for the

applicant briefed the court that there was inordinate delay on the
part of the court to notify the defendant on the entry of judgment.
That at an earlier stage, the due date of the judgment was
adjourned to one of notice to the parties which was never issued

JMISC. CIVIL CASE NO. E006 OF 2020 2

by the court. Therefore, as a consequence time for filing of
memorandum of appeal under Section 79 (G) of the Civil
Procedure Act lapsed. According to the applicant counsel, the
failure not to comply was not intentional to warrant sanctions
from the court. Looking at this application from that perspective,
Firstly, I asked whether, the applicant has satisfied the criteria in
Salat and Paul Wanjohi Mathenge cases (supra). From the
combined effect averred in the notice of motion and Affidavit
deponed by the applicant there is material and substantial
reasons demonstrating his failure to comply with the timeline set
in Section 79 (G) of the Act.

As, I understand the applicants case, there is a draft

memorandum of appeal which prima facie show a strong and
arguable case in the intended appeal. Nevertheless, these are
issues which the applicant must prove on appeal. At this stage, I
am not required to determine any of the grounds raised in the
draft memorandum with finality. It is in my view that the
applicant has justified through a chronology of events between
the date the said judgment was delivered on 25.9.2020 and the
20.11.2020 when his certificate of urgency accompanied with the
notice of motion seeking this court’s intervention on the matter.
Against the backdrop of the law and contentions made by the
applicant I would thereby exercise discretion to grant leave for
extension of time to file an appeal out of time.

JMISC. CIVIL CASE NO. E006 OF 2020 3

The next limb which falls to be decided is on stay of execution
pending the intended appeal under Order 42 Rule 6 of the Civil
Procedure Rules. The Law on this area is now well settled on the
principles under which the court proceeds to grant or decline the
orders of stay of execution.

In Consolidated Marine v Nampijja and another CA no 93 of 1989 ,

“The purpose of the application for stay of execution pending
appeal is to preserve the subject matter in dispute so that the right
of the appellant who is exercising undoubted right of appeal are
safeguarded and the appeal if succeeds fail is not rendered
nugatory”

In George Oraro v Kenya Television Network, Nairobi, Civil Case

No. 151 OF 1992, “The court does not make a practice of depriving
the successful litigants of the fruits of his litigation, and locking up
the fruits to which prima facie he is entitling to, pending an appeal”

As indicated in the case of Stephen Wanjohi v Central Glass

Investments Ltd, Nairobi, High Court Civil Case NO. 6726 of 1991,
“in essence for the court to order stay of execution under order 42
Rule 6 of the CPR, there must be;

(a) No unreasonable delay

(b) The basis on substantial laws must be established

(c) Sufficient cause

(d) Deposit of security for due performance of the decree.

(e) The other aspect to consider is whether the intended

appeal would be rendered nugatory if stay is not granted.

As already intimated the applicant has leave of this court to file

an appeal out of time. The applicant counsel elaborately

JMISC. CIVIL CASE NO. E006 OF 2020 4

constructed his argument in this regard, that by operation of
Order 42 Rule 6 the discretion be judicially exercised so as not to
render the intended appeal nugatory. On substantial loss it has
to be observed that the trial involved a special feature of money
decree arising out of damages under the tort of negligence
against the applicant as a wrong doer grounded on liability in the
ensuing accident.

I see no realistic prospect that the respondent would be in a

position to refund the decretal sum in the event of the appeal
succeeding. Furthermore, the respondent is silent on her ability
to refund the money if the circumstances and final order of the
appeal demands that the sums paid out are recoverable. The fact
is that the applicant prospects of being financially ruined is not
subjective as is based on sound evidence. Therefore, there is
existence of one or more principles in the instant application
which will entitle the applicant stay of execution pending appeal.

Result

The notice of Motion dated 7.11.2020 is allowed with costs to

abide the appeal. For these reasons, the draft memorandum be
deemed as duly filed within time. The applicant do deposit the
decretal sum in a joint earning interest account for both Counsels
in a reputable financial institution within 30 days from today’s
order. The record of appeal be filed and served within the

JMISC. CIVIL CASE NO. E006 OF 2020 5

aforesaid period simultaneously in this matter under the above
clause.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 25 TH DAY OF

JANUARY, 2021
............................
R. NYAKUNDI
JUDGE
This Ruling has been dispatched electronically to the respective
emails of the advocates in the matter.