1.Before me are two applications which were canvassed together through written submissions.
2.The first one, is an application by way of Notice of Motion dated 24th September 2021 filed by Urgent Cargo Handling Ltd through counsel M/s Mwangangi Nzisa & Associates. This application was filed under section 3, 3A and 75(1)(h) of the Civil Procedure Act, Order 42 Rule 1, Order 42 Rule 6, and Order 43 Rule 1, Order 50 Rule 6, and Order 51 Rules 1, 3 and 4 of the Civil Procedure Rules, and seeks the following orders –
3.That the applicant be granted leave to appeal outside time, which appeal is premised on the grounds as set out in the annexed Memorandum of Appeal.
5.That there be a stay of execution of the judgment of the Honourable Court delivered on 06/08/2021 pending the hearing and determination of the intended appeal.
6.Any other relief that the court will deem fit and appropriate to grant.
7.Costs be in the cause.
3.The application has grounds on the face of the Notice of Motion, that by the time the intention to appeal was conceived the statutory timelines for filing appeal had lapsed, and that the delay in lodging the intended appeal was neither deliberate nor inordinate.
4.The application was filed with a supporting affidavit sworn on 23rd September 2021 by Linda Chorio an Officer in the Legal Department of APA Insurance Company Ltd, the insurers of motor vehicle KBQ 992W, which is linked to the alleged accident. The affidavit amplifies the grounds of the application.
5.The application has been opposed through a replying affidavit sworn on 22nd October 2021 by Benjamin M. Nzei advocate for respondent in which it is deponed that the application is without merit, that the trial court had already granted 45 days stay of execution of the judgment, that there is no truth that the applicants asked that the judgment be typed and that they had access to the judgment.
6.The second application is a Notice of Motion dated 22nd October 2021 filed by Conjestina Nthenya Jacob through Counsel M/s Nzei and company, under Order 40 Rule 7; and section 1A, 1B and 3A of the Civil Procedure Act (Cap.21), and seeks the following orders –
2.That the court directs that this application be heard with the application dated 24/09/2021.
3.That this court be pleased to call the lower court file Kilungu PMCC No. 176 of 2017 (Conjestina Nthenya Jacob suing as the legal representative of the estate of Patrick Kisio Mailu –Vs- Urgent Cargo Handling Ltd) on the hearing date of this application.
5.That an order do issue granting the applicant herein leave to cross-examine the deponent of the affidavit in support of the respondent’s application dated 24/09/2021.
6.That the applicant be granted be granted leave to cite the deponent of the affidavit in support of the respondent’s application dated 24/09/2021 for perjury.
7.That the costs of this application be provided for as against the respondent.
7.The application has grounds on the face of the Notice of Motion, that the deponent of the affidavit to the application dated 24/09/2021 was not a party to the suit and had not produced any documentary of authority for swearing the affidavit on behalf of the defendant, and that the said deponent failed to disclose that the trial court had already granted 45 days stay of execution in the matter.
8.Conjestina Nthenya Jacob also filed a supplementary affidavit in opposition to the application dated 24/09/2021, in which she deponed that Linda Chorio, the deponent of the supporting affidavit to that application, was not a party to the suit and had not disclosed her relationship with Urgent Cargo Handling Ltd, and that because the said deponent was neither a Director or a Legal Officer of the company she did not have right of audience in this court.
9.The two applications were canvassed through the filing of written submissions. In this regard, I have perused and considered the written submissions filed by Mwangangi Nzisa & company for Urgent Cargo Handling Ltd, and those filed by Nzei & company advocates for Congestina Nthenya Jacob. The two applications for determination together in this ruling.
10.Other than the request for leave to cross-examine and cite for perjury the deponent of the affidavit in support of the application dated 24/09/2021 which this court has already disallowed, both applications are for leave to appeal out of time. The application dated 24/09/2021 also seeks stay of execution orders, pending hearing and determination of the intended appeal.
11.With regard to the request for enlargement of time to file appeal, the law applicable is section 79G of the Civil Procedure Act (Cap 21), which provides as follows –
12.It follows thus that, when the 30 days statutory period for filing appeal has lapsed, the court can still enlarge time to file appeal. However, the burden is on an applicant for such enlargement of time, to satisfy the court that he had good and sufficient cause for not filing the appeal in time.
13.The applicant’s lawyers have contended that there was a delay in obtaining instructions to appeal. In my view, if the applications were not filed during the Covid-19 pandemic period, the request for enlargement of time would have been unmerited. However, being mindful of the constrains experienced by all and sundry during the pandemic in 2020 and 2021, and the fact that judgment herein was delivered in 2021, I will grant extension of time for the parties herein to appeal out of time within 30 days of this ruling, to give parties their day in court.
14.With regard to the request by Urgent Cargo Handling Ltd for stay of execution of judgment pending determination of the intended appeal, Order 42 Rule 6(2) of the Civil Procedure Rules is relevant. Several cases have dealt with this issue, including the case of Butt –vs- Rent Restrictions Tribunal 91982) KLR 417, wherein the considerations to be taken by the court in determining whether to grant stay of execution were spelled.
15.The first consideration for the court on a request for grant of orders of stay for execution pending appeal, is whether the application was filed without unreasonable delay. Having found that the case was determined during the Covid-19 pandemic period, and this request for stay of execution having been made in the same application for enlargement of time to file appeal, I find that the application for stay of execution was filed without undue delay, since I have already enlarged the time for filing appeal herein.
16.The second consideration in an application for stay of execution of judgment pending appeal, is whether the applicant will suffer substantial loss if the stay sought is not granted. In this regard, I have taken into account the fact that the award of damages herein is in excess of Kshs.4,000,000/=
17.I also note that though no consent on liability was recorded; both counsel in submissions, proposed a ratio of liability of about 50% against Urgent Cargo Handling Ltd. From the Memorandum of Appeal also, the appeal is on quantum of damages.
18.In those circumstances, I find that the applicant in the application dated 24/09/2021, will suffer substantial loss if the whole amount of the award, is paid to the respondent and is not refunded if the appeal succeeds. I will thus grant stay of execution subject to Urgent Cargo Handling Ltd paying part of the decretal amount to the respondent in the application dated 24/09/2021.
19.As for provision of security by the applicant, my view is that the part of the decretal sum to be paid to the respondent will operate as adequate security.
20.Consequently, and for the above reasons, I order as follows –1)I enlarge time to both parties herein to file an appeal out time. Appeals will be filed within 30 days from today.2)I grant stay of execution of decree or judgment herein pending determination of appeal.3)The above stay of execution is subject to Urgent Cargo Handling Ltd paying Conjestina Nthenya Jacob through counsel part of the decretal amount Kshs.1,000,000/= within 60 days from today. In default of payment the stay herein above granted will automatically lapse.4)Parties will bear their respective costs of the applications herein.