1.On 24th January, 2022, his Court granted a stay of execution of the subject decree pending the hearing and determination of this appeal on condition that the Applicants furnishes a Bank Guarantee for the decretal sum specific to this matter. The said condition was to be complied with within 30 days and in default the application would be deemed to have been dismissed with costs.
2.That order does not seem to have been complied with since the Applicant herein by a Notice of Motion dated 22nd February, 2022 moved this Court seeking the following orders:1.THAT this Application be certified urgent, service be dispensed with thereof and the same be heard ex parte in the first instance.2.THAT this Honourable Court be pleased to grant a stay of execution of the Judgment and/or Decree issued in Machakos Cmcc No. 145 of 2020 on 21st October, 2021 awarding the Respondents a decretal sum of kshs 3, 105,261/- together with costs and interest pending the hearing and determination of this Application.3.THAT this Honourable Court do review/vary the conditions for stay of execution granted by the Honourable Judge on 24th January, 2022 that the Appellant/Applicant do furnish a Bank guarantee for the decretal sum specific to this matter within the next 30 days from the date of ruling.4.THAT this Honourable court be pleased to enlarge time within which the Appellants should comply with the court orders issued on 24th January, 2022 and/or vary the said Ruling.5.THAT this Honourable Court allow the Appellant/Applicant to furnish the Court with security in the form of a Bank Guarantee from the DTB Bank/ and or Family Bank Limited of kshs 3,000,000/- which is the statutory limit for insurance companies.6.THAT the Application be heard inter partes on such date and time as this Honourable Court may direct.7.THAT The costs of this Application abide the outcome of the Appeal.
3.The application was supported by an affidavit sworn by Leah Gathenya an advocate of the High Court of Kenya practicing as such in the firm of M/s Kimondo Gachoka Advocates which is on record for the Appellant/Applicants.
4.According to the deponent, the Appellant/Applicants’ insurer was informed of the orders of the court in regards to the stay conditions which responded that they could only manage to furnish the Court with security in the form of a Bank Guarantee from the DTB Bank/ and or Family Bank Limited of up to Kshs 3,000,000/- which is the statutory limit. However, the 30 days’ period within which the condition was to be complied with has since lapsed hence the need to enlarge the same and/or vary the said Ruling.
5.It was deposed that the Appellant/Applicants’ insurer was ready and willing to secure a limit of Kshs 3,000,000/- only (the Statutory limit) of the decretal amount by way of bank guarantee from a reputable bank (DTB/Family Bank) within the Republic of Kenya within 14 days.
6.It was however averred that the Appellant/Applicants are still interested in pursuing this appeal and will be highly prejudiced if the application is not allowed as the Respondent will be at liberty to execute and this appeal will be rendered nugatory. On the other hand, the Respondent will not be prejudiced in any way if the conditions of depositing the security are varied as the application will not occasion any prejudice to the Respondent.
7.In opposing the application, the Respondent relied on the replying affidavit sworn by Dominic Mulyungi the Respondent’s advocate. According to him, the orders sought by the applicants are not available to them because the orders sought to be varied and the time to comply with them enlarge do not exist anymore as the application upon which they were issued having been deemed dismissed upon the lapse of the 30 days. Without an application seeking to reinstate the application, it was averred that the present application is an abuse of the court process.
8.It was further averred that the applicant has failed to disclose the reason for the delay since the Applicants’ insurer has always been aware of its statutory limits. It was contended that the order for furnishing the bank guarantee was given at the instance and request of the applicants’ insurer who did not indicate that the guarantee would be conditional to specific amount.
9.It was deposed that the Respondents stands to be prejudiced in light of the allegation that only Kshs 3,000,000.00 would be secured as the Appellants would not be able to pay the balance in the event that the appeal fails as the sum due to the Respondents is Kshs 3,377,001.53 exclusive of interest which is still accruing.
10.On without prejudice, the Respondent propose that the Applicants do provide security for the entire sum by a bank guarantee of Kshs 3,000,000/- by their insurers’ bankers and a further guarantee of the balance of Kshs 377,001/53 as well as the accrued interests.
11.I have considered the application, the affidavits, both in support of and in opposition thereto and the submissions filed.
12.Order 50 rule 6 of the Civil Procedure Rules provides that:
13.In this case the time for complying with the conditions was fixed by this court’s order. Accordingly, this court has the discretion to grant the orders sought herein. The Respondent has taken the issue that since the conditional order lapsed, the application is deemed to have been dismissed and therefore no variation of the said order or enlargement of time can be granted unless the application is reinstated.
14.The deeming effect was discussed in Prof. Peter Anyan’g Nyong’o and 10 Others vs. Attorney General of Kenya & Others EACJ Reference No. 1 of 2006  1 EA 5;  2 EA 5;  3 KLR (EP) 397 where it was held that:
15.In my view since the said provision states that enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed, even though the earlier application is deemed as dismissed, nothing bars the court from entertaining an application for extension of time under the said rule whose effect if allowed would result in the revival of the deemed dismissed application. In this case the order that was issued on 23rd January, 2019 is the kind of order commonly referred to in legal parlance as “unless order”. That is my understanding of the decision in Samuels vs. Linzi Dresses Ltd. (1980) 1 ALL ER 803 where it was held that:
16.However, the decision whether or not to do so is in the court’s discretion. This being an exercise of judicial discretion, like any other judicial discretion must on fixed principles and not on private opinions, sentiments and sympathy or benevolence but deservedly and not arbitrarily, whimsically or capriciously. The Court’s discretion being judicial must therefore be exercised on the basis of evidence and sound legal principles, with the burden of disclosing the material falling squarely on the supplicant for such orders. This was the position of the Court of Appeal in George W. Omondi vs. Guilders International Bank Limited  eKLR where the Court expressed itself as hereunder:
17.One of those judicial principles expressly provided for in the above provision is that the applicant must satisfy the Court that he has a good cause for doing so, since as was held in Feroz Begum Qureshi and Another vs. Maganbhai Patel and Others  EA 633, there is no difference between the words “sufficient cause” and “good cause”. It was therefore held in Daphne Parry vs. Murray Alexander Carson  EA 546 that though the provision for extension of time requiring “sufficient reason” should receive a liberal construction, so as to advance substantial justice, when no negligence, nor inaction, nor want of bona fides, is imputed to the appellant, its interpretation must be in accordance with judicial principles.
18.In this case, the ruling which set out the conditions was delivered on 24th January, 2022. The applicants had 30 days from the said date to comply therewith which would have been by around 25th February, 2022. This application was filed on 29th February, 2022, just a few days after the last day. While I agree that the applicants have not explained the reason why there was a delay of those few days, I am not prepared to find that the delay was inordinate as to deny them the favourable exercise of the Court’s discretion in these circumstances.
19.In this case the reason advanced for the revision of the conditions for stay is that the statutory limit is Kshs 3,000,000.00. That is an issue that the Applicant knew when the application for stay was sought and granted. Yet in the supporting affidavit sworn on 4th November, 2021, the insured deposed that the insurer was ready, willing and able to furnish the Court with a Bank Guarantee from DTB Bank as security to the Court. The insurer now contends that its statutory liability is limited to Kshs 3,000,000/-. While it may well be that the statutory limited was well within the knowledge of the insurer, the fact that the supporting affidavit was deposed to by the insured may well explain the omission to set out this fact.
20.However, in this case, the insurer’s liability is not the subject of this appeal. At this stage there is no order directing the Insurance Company to pay any sum. If its statutory limit is only Kshs 3,000,000.00 nothing bars it from giving a guarantee to the tune of its statutory limit and leaving the insured to guarantee the balance. However, it cannot seek to shield the judgement debtor from being executed against simply because, its statutory liability is limited. The insurance company ought to know that the primary liability falls on the insured and whether or not the insurer has a statutory limit does not absolve the insured from meeting its liability to the decree holder. The issue of limitation of the insurer’s liability only affects the insured. The third party, where the limitation is found to exist, is at liberty to pursue the insured for the balance. Accordingly, while the insurer may obtain stay against the decree holder, where the insured intends to execute against it for a sum more that it is statutorily liable to pay, it cannot bar the decree holder from executing against the judgement debtor simply because the insurer’s liability is limited.
21.It, however, must be appreciated that in exercising its discretion this Court is enjoined to ensure that the aims and intendment of the overriding objective as stipulated in section 1A as read with section 1B of the Civil Procedure Act are attained. It is therefore important that the Court takes into consideration the likely effect of granting the stay on the proceedings in question. In other words, the Court ought to weigh the likely consequences of granting the stay or not doing so and lean towards a determination which is unlikely to lead to an undesirable or absurd outcome. What the Court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the Court on equal footing and see where the scales of justice lie considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the Court do not render nugatory the ultimate end of justice. The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice. See Suleiman vs. Amboseli Resort Limited  2 KLR 589. This was the position of Warsame, J (as he then was) in Samvir Trustee Limited vs. Guardian Bank Limited Nairobi (Milimani) HCCC 795 of 1997 where he expressed himself as hereunder:
22.In this Court’s decision in Machakos HCCC No. 26 of 2018 - Winfred Mutheu Kiamuko & Titus Maundu Nzambu [suing as administrators of the estate of the late Evans Kyalo Maundu (Deceased) VS. Icea Lion General Insurance Co. Limited the decision of Mulwa, J in Peter Gichihi Njuguna vs. Jubilee Insurance Co. Ltd  eKLR was cited with approval and the Court expressed itself as hereunder:
23.In the premises, I find that to decline to vary the conditional terms that were issued herein and enlarge the period for doing so may lead to injustice for both the Applicants and the Respondents if it turns out that the Applicants are unable to make good the decretal sum. I am making determination while considering the principal sum together with the accrued interests and costs vis-à-vis the balance of the decretal sum.
24.Accordingly, I hereby vary the terms of the stay imposed vide the ruling made on 24th January, 2022 and direct that the stay is granted on condition that the Applicants issue furnishes a Bank Guarantee for the sum of Kshs 3,000,000.00 together with interest and costs within 30 days. For avoidance of doubt in default the application would be deemed to have been dismissed with costs.
25.It is so ordered.