1.Before me is an application dated 21st June 2023 by way of Notice of Motion brought under Section 1A, 1B, 3A, 63, 79, 79G of the Civil Procedure Act (Cap.21), and Order 42, 50, and 51 of the Civil Procedure Rules, as well as Section 57, 58 and 59 of the Interpretation and General Provisions Act.
2.The prayers in the application are as follows:-
3.The application has grounds on the face of the Notice of Motion that the applicant is desirous to appeal, and the respondent had on 15th June 2023 written a letter demanding payment of Kshs. 1,561,890/= and threatened execution.
4.The application was filed with a supporting affidavit sworn on 21st June 2023 by Collins Mwariri a director of the applicant amplifying the grounds of the application, and annexing a number of documents.
5.The application is opposed through Grounds of Opposition dated 7th July 2023 filed by Nyakoni Ratemo Advocates for the respondent in which it was stated that the application is an abuse of court process and has been brought too late in the day.
6.The application has also been opposed through a replying affidavit sworn on 7th July 2023 by Patrick Chege Nganga the 1st respondent in which it was deponed that the application lacks merits and is an abuse of the process of the court.
7.In response to the replying affidavit, the applicant filed a further affidavit sworn by Collins Mwariri on 21st July 2023 in which it was deponed that the issues raised in the draft Memorandum of Appeal, deserve consideration and determination by this court.
8.The application was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by Wokabi Mathenge & Company Advocates for the applicant and Nyakoni Ratemo & Company Advocates for the respondent. I have to acknowledge here that each side relied upon decided court cases.
9.With regard to the request for enlargement of time to file appeal, Section 79G of the Civil Procedure Act (Cap.21) is relevant. It provides, inter alia, as follows:-
10.What reason has the applicant given herein for the delay in filing appeal? The most important reason given was the death of the former advocate Mr. Wachira who passed away in May 2023 after having applied for copy of typed proceedings and judgment.
11.In my view therefore this application filed on 23rd June 2023 was not filed after inordinate delay, and the reasons given for the delay in filing appeal are valid. I will extend time to appeal.
12.With regard to the request of stay of execution of judgment or decree pending appeal, Order 42 Rule 6 of the Civil Procedure Rules applies, especially Rule 6(2) which states that:-
13.With the facts and circumstances disclosed to me herein, I find that the application was filed without unreasonable delay.
14.Turning now to whether the applicant will suffer substantial loss if the stay orders sought are not granted, I note that this is a money decree on a claim for loss or damage of goods in transit, plus loss of business. In those circumstances, in my view the applicant is likely to suffer substantial loss if the stay orders sought are not granted, and the appeal later succeeds.
15.With regard to the applicant offering security, I note that the applicant has not indicated willingness to provide security. However, since this matter relates to a business transaction, I find no reason to order the applicant to deposit the decreed money in court.
16.Consequently, and for the above reasons, I allow the application and order as follows:-