The Applicant’s Case.
3.The Applicant who was the Legal Officer of the Applicant’s Insurer stated that the subordinate court delivered a Judgment on 8th May 2023 and by statute they were obligated to satisfy the Judgment. That the Judgment had been delivered away from the station and as of 15th May 2023, the same had not been returned to the registry for their advocates to procure a certified copy for the purposes of preferring an Appeal.
4.It was the Applicant’s case that by the time they procured the certified copy, the time for filing the Appeal had lapsed. That the failure to file the Appeal within time was not their fault.
5.The Applicant stated that they had a strong Appeal on the damages awarded by the trial court and the Appeal had a high chance of success.
6.It was the Applicant’s case that the Respondent would not suffer any prejudice which could not be compensated by way of costs.
Applicant’s written submissions.
10.Through its submissions dated 16th October 2023, the Applicant submitted that the delay was excusable as it was occasioned by circumstances that were not beyond their control. That on 8th may 2023, the court delivered its Judgment virtually and outside the station and they were unable to procure a copy of the Judgment in good time. It further submitted that this court had discretion is enlarging the time to file an Appeal. It relied on Moses Odero Owuor & 2 others v Andronico Otieno Anindo  eKLR and Kamlesh Mansukhalal Damki Patni v Director of Public Prosecution & 3 others  eKLR.
11.It was the Applicant’s submission that its Appeal was arguable and had a high chance of succeeding. That it’s Appeal raised triable issues. It relied on Vishva Stone Suppliers Company Limited v RSR Stone Limited  eKLR and Divya J. Patel v Guardian Bank Limited  eKLR.
12.The Applicant submitted that in the best interest of the parties herein that the court issues a stay of execution on condition that the Applicant deposits the decretal amount in a joint interest earning account within a stipulated period. It relied on Butt v Rent Restriction Tribunal  KLR 417.
13.It was the Applicant’s submission that they had come to court in good time and that they had disclosed sufficient reason why this court should rule in their favour.
The Respondent’s submissions.
14.Through his submissions dated 8th August 2023, the Respondent submitted that this court had discretion in deciding to enlarge the time for filing an Appeal. He relied on Silas Kanyolu Mwatha v Josephine Kavive James  eKLR. He further submitted that should the court extend the time to file the Appeal, it should do so on the condition that the Applicant pays him half the decretal amount.
15.Regarding the prayer for stay of execution, the Respondent equally submitted that if stay is to be granted, it is granted on the condition that the Applicant pays him half the decretal sum and the other half in a joint interest earning account in the joint names of the parties’ advocates. He relied on Order 42 Rule 6 of the Civil Procedure Rules, Magnate Ventures v Simon Mutua Muatha & another  eKLR and Suleiman v Amboseli Resort Limited  2 KLR 589.
16.It was the Respondent’s submission that the Applicant had not demonstrated to the court that the orders he sought should be granted.
17.I have gone through and considered the Notice of Motion Application dated 15th June 2023, the Replying Affidavit dated 12th July 2023 the Applicant’s written submissions dated 16th October 2023 and the Respondent’s Written Submissions dated 8th August 2023. The only issue for my determination was whether the Applicant should be granted leave to file his appeal out of time.
18.Section 79G of the Civil Procedure Act provides that:-Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.Provided 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.
19.This court is clothed with the discretion to decide whether or not to grant leave to file an appeal out of time. Such discretion ought to be exercised judiciously and within the principles of the law. The principles were set out in the Court of Appeal case of Omar Shurie v Marian Rashe Yafar (Civil Application No. 107 of 2020) UR where it was held:-
20.Similarly, the Court of Appeal in Edith Gichugu Koine v Stephen Njagi Thoithi  eKLR held:-
21.The importance of giving a sufficient reason for the extension of time to appeal was discussed in the Court of Appeal case of Susan Ogutu Oloo & 2 Others v Doris Odindo Omolo  eKLR where it was held that:-
22.The Applicant stated that the reason he could not file his Appeal out of time was that they could not procure a certified copy of the Judgment in time. That the trial court delivered its Judgment virtually and out of station and by the time they procured the Judgment and decided to file an Appeal, the requisite time for filing it had lapsed. The Applicant stated that their failure to lodge an Appeal within the required time was caused by circumstances beyond their control.
23.The Respondent on the other hand stated that even though the Applicant had the right to appeal, he should not be denied the fruits of his Judgment.
24.The Applicant attached a copy of the trial court Judgment and the same was marked as EM1. It shows that the Judgment was delivered on 8th May 2023. The Applicant has also attached a copy of his draft Memorandum of Appeal marked as EM4 which shows that he filed his Appeal on 15th June 2023. This means that the Appeal was filed seven (7) days after the requisite 30 days.
25.It is my finding that a delay of 7 days was not inordinate. I am satisfied by the Appellant’s reason for not filing his Appeal within time.
26.On the issue of the Appeal being arguable, I have perused the draft Memorandum of Appeal dated 13th June 2023 and I find that it was arguable as it raised issues that required the court’s determination. In the case of Kenya Industrial Estate Limited & Another v Matilda Tenge Mwachia  eKLR, the Court of Appeal held that:-
27.The final ground that the court considers in such an application is the prejudice that the Respondent would suffer if leave to file the Appeal out of time was granted. In the case of Ngwambu Ivita v Akton Mutua Kyumbu  KLR 441, the Court of Appeal held:-
28.The Respondent stated that he would be prejudiced if the Applicant was allowed to file his appeal out of time. His prejudice would be that his justice would have been delayed. This in my view is not a sufficient reason to deny the Applicant an opportunity to ventilate his case on Appeal. It is my finding that the Respondent has not shown the prejudice he would suffer if the leave to file the Appeal out of time was granted.
29.This court’s position is that a party has a right to appeal and it would take extra ordinary circumstances to deny a party such a right.
30.In the final analysis, the Applicant has satisfied the conditions precedent to the court enlarging his time to file his appeal.
31.I have however noted that both parties have submitted on the prayer for stay of execution. The said prayer was not available for this court’s determination. Prayer 2 in the Applicant’s Application dated 15th June 2023 was for stay of execution of the Judgment/Decree in Bomet PMCC No. E046 of 2022 pending the hearing and determination of the Application. On 21st June 2023, this court granted the stay on a temporary basis and the same was extended on 25th July 2023 when the matter was mentioned in open court. The Applicant did not seek for stay of execution pending the hearing and determination of his intended Appeal.
32.The Applicant had submitted that it was willing to deposit the decretal sum as a condition for being granted a stay of execution. In the interest of justice and in an effort to save judicial time, I find it prudent to grant the stay of execution pending the hearing and determination of the Appeal on condition that the Applicant deposits the full decretal amount as security.
33.In the end, the Notice of Motion Application dated 15th June 2023 is merited. I hereby make the following orders:-i.The Applicant is granted leave to lodge his appeal from the Judgment/Decree in Bomet PMCC No. E046 of 2022 out of time.ii.The draft Memorandum of Appeal dated 13th June 2023 and filed on 15th June 2023 be and is hereby deemed properly on record.iii.The Applicant be and is hereby granted stay of execution of the Judgment/Decree in Bomet PMCC NO. E046 of 2022 after depositing Kshs 3,106,970/= in an interest earning account in the joint names of the parties’ advocates within 45 days of this Ruling.iv.Failure to deposit the decretal sum of Kshs 3,106,970/= within 45 days of this Ruling shall invalidate the stay of execution.v.The applicant though successful is not granted costs of the application.