1.Before me is an application dated 5th May 2021 brought by way of Notice of Motion under section 1A, 1B, 3A, 79G and 95 of the Civil Procedure Act (Cap.21) and Order 42 Rule 6(1), Order 50 Rule 5 & 6 and Order 51 Rules 1, 3 and 10(1) and (2) of the Civil Procedure Rules 2010.
2.The application seeks six (6) orders, some of which have been spent as follows –
3.The application has grounds on the face of the Notice of Motion that an appeal is intended to be filed in the High Court, that if the orders sought are not granted the applicants will suffer substantial and irreparable loss and damage, that the delay in filing the appeal and application was occasioned by delay in the advocates obtaining instructions.
4.The application was filed with a supporting affidavit sworn by Kelvin Ngure the Claims Manager of Directline Assurance Company the insurers of the subject motor vehicle which amplifies the grounds of the application and annexes a number of documents, including the draft memorandum of appeal and a proposed bank guarantee from Diamond Trust Bank Ltd.
5.The application is opposed through a replying affidavit sworn on 17/05/2021 by Cosmas Maluli Nthenge one of the respondents in which it was deponed that the applicants have not given sufficient reasons for grant of leave to appeal out of time and for grant of orders of stay of execution, both of which were discretionary orders of the court.
6.The application was canvassed through filing of written submissions. In this regard, the applicants’ submissions were filed by Kimondo Gachoka & company advocates, and respondent’s submissions were filed by Thomas Geoffrey Onyancha & company. I have perused and considered the submissions filed on both sides.
7.I will deal first with the issue of leave to appeal out of time. In this regard, I note that both parties’ counsel submitted submission dwelling only on stay of execution. Considering the provisions of section 79G of the Civil Procedure Act (cap 21), an appeal from the subordinate court is required to be filed in this court within 30 days, but this court may for good reasons extend such time.
8.Indeed, the applicants herein have admitted the delay, and counsel says that it was due to receipt of instructions late from the clients. I have perused the draft memorandum of appeal and, in my view, the intended appeal on quantum of damages is an arguable appeal. In those circumstances, and in view of the reasoning in the case of Shah v Mbogo (1967) EA 116 regarding this exercise of the court’s discretion is to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or errors in such matters, I will grant extension of time to file appeal herein.
9.I now turn to the request for stay of execution of decree or judgment. In this regard Order 42 Rule 6 of the Civil Procedure Rules is applicable. In particular Rule 6(2) provides as follows –
10.With regard to delay, I have found above that though there was delay in bringing the present application, it is not inordinate as the reason for the delay has been sufficiently explained. I am also aware that this has been during the Covid – 19 restrictions period.
11.With regard to whether there might be substantial loss to the applicants, if the stay orders sought are not granted, I note that this is a money decree. The grounds of appeal in the draft memorandum of appeal show a prima facie appeal withprobability of success. In those circumstances, I will grant stay of execution orders subject to the applicants paying part of the decretal amount to the 1st respondent.
12.As for provision of security by the applicant, in my view the part of the decretal amount to be paid to the respondents herein will be adequate security provided by the applicants.
13.Consequently and for the above reasons, I order as follows –
1.I grant leave to the applicants to file appeal out of time. The appeal will be filed within 30 days from today.
2.I grant stay of execution of decree or judgment herein pending determination of appeal. However, the applicants will pay to the respondents through counsel part of the decretal amount of Kshs.700,000/= within 30 days from today.
3.In default of either (1) or (2) above the stay order herein granted will automatically lapse and be of no effect.
4.The costs of the application will follow the decision in the appeal. However, if there is default in (1) or (2) above the costs of this application will be to the respondents herein.