1.Before this Court for determination is the Appellant’s/Applicant’s Notice of Motion dated the 4th November, 2022 seeking the following reliefs;
2.The application is based on the grounds on the face of the Motion and supported by the Affidavit of Dr Victor Lando, the Appellant’s advocate, who deposed that his law firm had conduct of ELC 993 of 2020 at the Magistrates Court; that Judgement therein was delivered on 11th October, 2022 and that on the aforesaid date, counsel holding his brief sought a 30-day stay of execution as well as a copy of the Judgement which orders were granted.
3.It was deponed by the Appellant advocate that shortly thereafter, on the 12th October 2022, he made a request to the registry via the e-filing system requesting for a copy of the Judgement; that on 14th October, 2022 he sent a representative to the registry to seek the same and that the representative was informed that the Judgement was yet to be typed and they should follow up a week later.
4.According to the Appellant’s advocate, on 25th October, 2022, the firm wrote an email to the registry and were informed that the Judgement had still not been typed; that even as at 3rd November, 2022, the correspondence indicated that the Judgement was still not ready and that although the Judgement is not ready to date, they nonetheless filed the Notice of Appeal.
5.In response, the Respondent filed Grounds of Opposition in which it was averred that an appeal to the High Court is in the nature of a Memorandum of Appeal and not a Notice of Appeal which applies to an appeal from the High Court to the Court of Appeal and that subsequently, the prayer to have the Notice of Appeal admitted as an appeal lacks basis in law.
6.It was averred by the Respondent that having been present during the delivery of the Judgement, the Applicant should have been able to set out grounds in a Memorandum of Appeal and that an Appeal to this Court cannot be instituted by way of a Miscellaneous Application and neither can the orders sought be granted. Nonetheless, it was averred, the Applicant has not demonstrated that it will suffer substantial loss nor provided any proposal for furnishing of security.
7.The Applicant filed submissions on 6th December, 2022. Counsel submitted that this Court can, pursuant to Section 79G of the Civil Procedure Act, grant leave for the filing of an Appeal out of time and that as expressed by the Court in First American Bank of Kenya Ltd vs Gulab P Shah & 2 Others, Milimani HCCC 2255 of 2000 1 EA, the considerations by the court to grant leave to file Appeal out of time include an explanation, if any, for the delay; the merits of the contemplated action; whether the matter is an arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice.
8.The others grounds, it was submitted, includes, whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the Applicant; that in the circumstances, the reason for the delay has been sufficiently explained and that as to arguability, the Respondent’s objection to the Motion signals that there are issues to be argued.
9.The Respondent submitted that the Court in Machira t/a Machira Advocates vs East African StandardeKLR, stated that the suspension of the benefits of a successful party can only be done in exceptional circumstances; that the Court in HGE vs SMeKLR, laid out the pre-requisites for the grant of a stay of execution pending Appeal to include the establishment that substantial loss will result unless the application is made, timeous filing of the application and the furnishing of security and that in the present circumstances, the Applicant has not demonstrated any substantial loss.
10.Counsel for the Respondent submitted that as expressed by the Court in Shell Ltd vs Kibiru and Another  KLR 410, it is important for the element of substantial loss to be substantiated and that further, the condition on security has yet to be satisfied. Reliance in this respect was placed on the cases of Gianfraco Manenthi & Another vs Africa Merchant Assurance Co Limited  eKLR which succinctly set out the rationale for the furnishing of security.
11.According to Counsel, an appeal to the High Court from the Magistrates Court can only be instituted by way of a Memorandum of Appeal and not a Notice of Appeal as in this case. Reliance in this respect was placed on the case of Francis Likhabila vs Barclays Bank of KenyaeKLR.
Analysis & Determination
12.Having carefully considered the pleadings and rival submissions by the parties, the issues that arise for determination are:i.Whether the Applicant has met the legal threshold for the grant of leave to appeal out of time?ii.Whether the Applicant satisfied the grounds for the grant of a stay of execution pending Appeal?iii.Whether the Applicant has met the legal threshold for the grant of leave to appeal out of time?
14.Section 16A(1) provides as follows;
15.Whereas Section 16A (2) states;
17.A proviso to Section 79(G) aforesaid provides;
18.Apart from the foregoing, Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules grant this court discretion to enlarge time where a limited time has been fixed for doing any act or taking any proceedings.
19.The courts have had occasion to set out the principles guiding the extension of time within which to Appeal. The Supreme Court in the case of County Executive of Kisumu vs County Government of Kisumu & Others  eKLR relied on its earlier decision in the case of Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others Application No. 16 of 2014  eKLR where it stated as follows:
20.The Court will be guided by the foregoing authorities. To begin with, it is noted that the Respondent seeks to impugn the validity of these proceedings. He asserts that an Appeal to this Court can only be commenced by way of a Memorandum of Appeal and not a Notice of Appeal as has been done in this matter.
21.Indeed, there is no provision in the Civil Procedure Rules requiring the filing of a Notice of Appeal from a subordinate Court to this Court. Order 42 Rule 1 of the Civil Procedure Rules is clear that what is envisaged herein is a Memorandum of Appeal. The Court agrees with the Respondent that there is no “appeal” herein. What does this mean for the prayer for leave to file the Appeal out of time?
22.The Courts have had the opportunity to discuss whether or not the failure to file a Memorandum of Appeal in an application for extension of time is a fatal omission. The Court of Appeal in Abubaker Mohamed Al-Amin vs Firdaus Siwa SomoeKLR stated as follows;
23.In the case of Geoffrey Maina Njuguna vs Waweru Ndirangu  eKLR, the Court opined that;
24.The Court agrees that Section 79G applies for both prospective and retrospective applications. Having settled the foregoing, has the Applicant sufficiently demonstrated why he should be allowed to file an Appeal out of time? It is not disputed that the Judgement, the subject of the Appeal, was delivered on 11th October, 2022. The current application was filed on 4th November, 2022. It is apparent that at the time of filing, the 30-day period had not yet lapsed. There was in essence no delay and no reason to seek extension of time.
25.However, the time has lapsed in the course of these proceedings. The Applicant has clearly demonstrated why he has yet to file the Appeal, the failure by the registry to avail the typed copy of the Judgement. For those reasons, the Court finds this to be a proper case to exercise its discretion and allow the Applicant time to file the intended Appeal out of time.
26.The law governing the grant of stay of execution pending appeal is Order 42 Rule 6 of the Civil Procedure Rules, the relevant part of which states as follows:
27.In the case of Halai & Another vs Thornton & Turpin (1963) Ltd  eKLR the Court of Appeal held inter-alia:-
28.It is evident from the above provisions and cited authority that the grant of orders of stay of execution are subject to the court’s discretion, the court being guided in this regard by the provisions of Order 42 rule 6 of the Civil procedure rules. The question of how the court should exercise this discretion was discussed by the Court of Appeal in Butt vs Rent Restriction Tribunal  KLR 417 who stated thus;
29.Before the Court can consider whether to grant stay of execution pending Appeal, there must of course be before it an Appeal. As discussed earlier, there is no Appeal before this Court, the Notice of Appeal herein being a document unknown in these proceedings. The Court of Appeal in Abubaker Mohamed Al-Amin vs Firdaus Siwa Somo (supra) while citing with approval the decision of the High Court in Rosalindi Wanjiku Macharia vs James Kiingati Kimani (Suing as the Legal Representative of the Estate of Martin Muiruri (Deceased))  eKLR concurred and adopted the foregoing reasoning:
30.Similarly, the Court in Waithera vs Kalakacha & Another (Miscellaneous Civil Application 484 of 2019)  KEHC 10758 (KLR) (Civ) (24 June 2022) (Ruling) stated thus;
31.As aforesaid, an Appeal is yet to be filed herein and there is therefore no basis upon which this Court can exercise its Appellate jurisdiction under the said provision, moreso in a miscellaneous matter.
32.In the end, the Application partly succeeds in the following manner;i.The Applicant be and is hereby granted leave to file an Appeal within 30 days of the date hereof.ii.The costs of the application shall be in the Appeal.