Analysis And Determination.
11.I have considered the application filed herein, the affidavit filed in support thereof, the grounds of opposition by the respondent and the written submissions by Counsel for both parties. The issues that arise for determination are-i.Whether Directline Assurance Company Limited has the legal capacity to prefer an appeal;ii.Whether the application for leave to file an appeal out of time is merited; andiii.Whether the applicants have satisfied the conditions set down to warrant grant of an order for stay of execution pending appeal.
12.In the affidavit filed on behalf of the applicants, it was deposed that Directline Assurance Company Limited are the insurers of motor vehicle registration No xxxx, at whose instance Mombasa SRMCC No 1492 of 2015 was defended. It was averred that on August 24, 2020, judgment was delivered against them for Kshs 1,689,878.55 and being aggrieved and dissatisfied with part of the said judgment, they instructed their Advocate to file an appeal but they missed the deadline set to appeal within 30 days, since the said judgment was delivered in the absence of parties. They stated that they got to know about the judgment after two months and it took them an additional one month to procure the judgment from the Court.
13.The applicants averred that they have proper grounds of appeal thus the intended appeal is arguable. They further averred that the inadvertent delay on their part is highly regretted and they should not be penalized since they had nothing to do with it. In addition, they contended that the delay occasioned is not so inordinate as not to be in excusable. They claimed that they stand to suffer irreparable substantial loss as there is a likelihood that they would not recover the decretal amount if it was paid to the respondent.Whether Directline Assurance Company Limited has the legal capacity to prefer an appeal.
14.The respondent submitted that Directline Assurance Company Limited lacks the legal capacity to file the instant application and lodge the intended appeal since they were not parties in CMCC No 1492 of 2015. In Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others  eKLR, the Supreme Court held that the issue of locus standi raises a point of law that touches on the jurisdiction of the Court and it should be resolved at the earliest opportunity.
15.It is not in dispute that from the pleadings herein, Directline Assurance Company Limited has not been listed as one of the parties to the suit in the lower Court. The respondent however submitted that that the application herein is supported by the affidavit of Pauline Waruhiu a Legal Counsel at Directline Assurance Company Limited, the insurers of the 1st applicant’s motor vehicle in the suit in the lower Court, and that it is not supported by the affidavit of the directors of Jamil Coach Company Limited or the 2nd applicant, Lawrence Kalume Katana, and that makes it is clear that it is the insurance company that seeks to appeal. I find the said submission to be misguided and more so, based on paragraph 1 of the affidavit of Pauline Waruhiu, which is reproduced hereunder for ease of reference-
16.It is not in dispute that Directline Assurance Company Limited is the insurer of the 1st applicant’s motor vehicle in suit in the lower Court. In addition, the respondent in her submissions stated that Directline Assurance Company Limited is obliged to settle the decretal sum pursuant to the provisions of Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act. In light of the foregoing, it is evident that the application herein and the intended appeal have been brought by Directline Assurance Company Limited in the insured’s name by dint of its right of subrogation and not in its own capacity, hence the issue of locus standi and/or capacity to appeal does not arise.Whether the application for leave to file appeal out of time is merited.
17.This Court has discretionary powers to consider applications for extension of time within which a party can lodge an appeal. Section 79G of the Civil Procedure Act provides that appeals from subordinate Courts shall be filed within a period of thirty days from the date of the decree or order appealed against. It further provides that an appeal may be admitted out of time if the appellant satisfies the Court that he had good and sufficient cause for not filing the appeal in time.
18.The Court of Appeal in Leo Sila Mutiso v Hellen Wangari Mwangi  2 EA 231 laid down the factors to be considered by a Court in the exercise of its discretion as hereunder-
19.The Trial Magistrate delivered his judgment in the lower Court on August 24, 2020. In line with the provisions of Section 79G of the Civil Procedure Act, the applicants ought to have filed a Memorandum of Appeal within 30 days, that is, on or before September 23, 2020. The application before this Court was filed on December 7, 2020, which was approximately three (3) months after the lapse of the thirty days’ period provided by law. As such, the applicants are required by law to give a plausible explanation as to the delay in lodging an appeal in good time against the judgment by the Trial Court. In this regard, I am guided by the decision of the Court of Appeal in the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet  eKLR, where the Court held that-
20.The judgment herein was delivered in the absence of the parties after the Trial Court directed parties to leave their email addresses with the Court for the judgment to be sent to them upon delivery. The applicants however deposed that their Advocate did not leave his email address with the Court on July 4, 2020. The applicants averred that it was not until November 12, 2020 when their Advocate on record inquired at the Civil Court Registry that he was informed that the judgment had since been delivered and he was given a copy of the judgment.
21.It is evident from the applicants’ submissions and affidavit in support of the application herein that they did not receive the Trial Court’s judgment through email and it took a period of two months before they got to know that judgment had been entered against them and an additional one month to procure the said judgment from the relevant Registry. The applicants are thus blaming the Court and the subordinate Court’s Registry for failing to inform them in good time that the judgment had been delivered.
22.It is my finding that from the record, one cannot ascertain whether or not the Trial Court transmitted the judgment in issue electronically to the parties through their Advocates. The respondent does not also disclose whether she received the said judgment through her Advocate’s email and/or when she came to know that judgment had been delivered by the Trial Court. In the said circumstances, this Court finds that the applicants have sufficiently and/or satisfactorily explained the delay in preferring an appeal against the decision of the Trial Court.
23.The applicants contend that they have an arguable appeal that raises pertinent points of law. I have gone through the draft Memorandum of Appeal annexed to the applicants’ supporting affidavit and it is clear that the applicants are challenging the Trial Court’s award in general damages on grounds that it was inordinately high and excessive in the circumstances and that the Trial Magistrate proceeded on wrong principles when assessing damages to be awarded to the respondent. In determining whether an intended appellant has an arguable appeal, Courts are cautioned not to delve into the merits of an appeal as that is the preserve of the Court that will be seized of the appeal.
24.Article 48 of the Constitution of Kenya, 2010 guarantees every person access to justice. In addition, Article 50(1) of the said Constitution guarantees every person the right to a fair hearing. The ultimate goal and purpose of the justice system is to hear and determine disputes fully. In view of the above, I am satisfied that the intended appeal herein is arguable.
25.In determining whether the respondent shall be prejudiced in the event that the application to extend time to file an appeal out of time is allowed, this Court has to balance the competing interests of the parties herein, that is, the injustice to the applicants in denying them an extension of time as against the prejudice to be occasioned on the respondent in granting an extension of time to the applicants. It is worth noting that the respondent did not file a replying affidavit in opposition to the application herein. In addition, there is no evidence to the effect that by the time the application herein was filed, the respondent had extracted a decree and commenced execution. It is therefore my finding that no prejudice shall be occasioned on the respondent in the event the application to extend time to file an appeal out of time is allowed. Consequently, I find that the application to extend time to file an appeal out of time is merited.Whether the applicants have satisfied the conditions set down to warrant grant of an order for stay of execution pending appeal.
26.The principles that govern the grant of an order for stay of execution pending appeal are provided for under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 as hereunder-
27.The Court’s power to grant an order for stay of execution is discretionary and the said discretion ought to be exercised judiciously. In dealing with an application for stay of execution, the Court has a duty to balance the interests of the parties by taking into account the fact that the applicants have an undoubted right of appeal, whereas the respondent has a decree which he should not be obstructed from executing unless there is a good reason.
28.From the judgment that was delivered by the Trial Magistrate on August 24, 2020, the respondent was awarded Kshs 1,680,000/= in general damages and Kshs 9,878.55/= in special damages making a total sum of Kshs 1,689,878.55. The respondent was also awarded costs of the suit and interest at Court rates from the date of the said judgment until payment in full. I am of the considered view that Kshs 1,689,878.55 is not a small amount of money. The applicants deposed that they stand to suffer irreparable substantial loss in the event that stay of execution is not granted since there is a likelihood that they will not recover the decretal sum if it is paid to the respondent whose source of income is unknown.
29.In Kenya Hotel Properties Limited v Willesden Investments Limited  eKLR, the Court of Appeal stated that Courts have felt that the success of an appeal would not be rendered nugatory if the decree is a money decree so long as the Court ascertains that the respondent is not a man of straw but is a person who, on the success of the appeal, would be able to repay the decretal amount plus any interest to the applicant.
31.In the present application, the applicants did not put forth their current financial position and explain how the same will be affected in the event that stay of execution is not granted. They however averred that they stand to suffer irreparable substantial loss if stay of execution is not granted, since there is a likelihood that they will not recover the decretal amount if it is paid to the respondent. The respondent on the other hand did not demonstrate her financial capacity to this Court by way of an affidavit of means to demonstrate her ability to refund the applicants the money in the event that they were to be successful in the intended appeal.
32.When considering the application herein, this Court has to ensure that the applicants are not seriously affected by the decision made and at the same time, the respondent is assured that her money will be there for her should the intended appeal not succeed. It is therefore this Court’s finding that on a balance of probability, the applicants have demonstrated that they are likely to suffer substantial loss if stay of execution is not granted.
33.The application herein was filed on December 7, 2020 whereas the judgment before the Trial Court was delivered on August 24, 2020, approximately three months from the date of delivery of the Trial Court’s judgment. As already held earlier in this ruling, the applicants have satisfactorily explained the delay in preferring an appeal against the decision of the Trial Court and the instant application
34.The applicants in their affidavit in support of the application averred that they are ready and willing to deposit a bank guarantee in Court for the entire decretal sum in Mombasa PMCC No 1492 of 2015 from a reputable commercial bank and/or furnish this Court with security as required by law. In Focin Motorcycle Co Limited vs Ann Wambui Wangui & another  eKLR, it was stated that:
35.This Court’s finding is that the application dated December 5, 2020 is merited and the same is allowed in the following terms-i.That the applicants are hereby allowed to file an appeal out of time against the judgment delivered on August 24, 2020 by Hon Lesootia Saitabau, Principal Magistrate, in Mombasa Chief Magistrate’s Civil Suit No 1492 of 2015;ii.That the applicants are directed to lodge their appeal within twenty-one (21) days from the date of this ruling;iii.That stay of execution is granted against the judgment delivered on August 24, 2020 by Hon Lesootia Saitabau, Principal Magistrate, in Mombasa Chief Magistrate’s Civil Suit No 1492 of 2015, pending the hearing and determination of the intended appeal;iv.That the applicants shall deposit the sum of Kshs 1,689,878.55 in a joint interest earning bank account in the names of the Advocates for the parties within thirty (30) days from the date of this ruling. In default thereof, the application shall be deemed to have been dismissed and the respondent shall be at liberty to execute; andv.That costs of this application will abide the outcome of the appeal.
It is so ordered.DATED, SIGNED and DELIVERED at MOMBASA on this 28th day of October, 2022. Ruling delivered through Microsoft Teams Online Platform.NJOKI MWANGIJUDGEIn the presence of:No appearance for the applicantsNo appearance for the respondentMr. Oliver Musundi – Court Assistant.