African Merchant Assurance Co. Ltd v Ricotech Motors Ltd & another (Civil Appeal E1049 of 2024) [2025] KEHC 3696 (KLR) (Civ) (26 March 2025) (Ruling)

Key Facts

Issues

• Whether the Applicant should be granted leave to file an appeal out of time against the judgment in Nairobi CMCC No. E10625 of 2021, considering the delay, reasons for the delay, chances of appeal success, potential prejudice to the Respondent, and public importance.
• Whether the application is incompetent for non-compliance with Order 9 Rule 9 of the Civil Procedure Rules, which requires that after judgment has been passed, a change of advocate shall not be effected without an order of the court or a consent filed between the outgoing and incoming advocate.
• Whether a stay of execution should be granted against the judgment in Nairobi CMCC No. E10625 of 2021 pending the appeal, balancing the Applicant's right to ventilate their case and the Respondent's right to enforce the judgment.

Holdings

• The court determined that the Applicant's current advocates (Chemeli Advocates LLP) are properly on record for the appeal, despite the 2nd Respondent's contention that the Applicant failed to comply with Order 9 Rule 9 of the Civil Procedure Rules by not obtaining court leave or consent for changing advocates. The court cited precedents affirming that an appeal is an independent matter not bound by such procedural rules unless the application for review or execution is involved.
• The costs of the application were ordered to be 'in the cause,' meaning they will be determined after the final outcome of the appeal. This aligns with the court's discretion to ensure fair allocation of costs based on the appeal's resolution.
• The court ordered a stay of execution of the judgment and decree pending the appeal, subject to the Applicant depositing the decretal sum into a joint interest-earning account. The stay is conditional on compliance with these requirements, and failure to do so would result in the application being deemed dismissed with costs, allowing the Respondent to proceed with execution.
• The court granted the Applicant leave to file an appeal out of time against the judgment delivered on 29.05.2024 in CMCC No. E10625 of 2021. The appeal must be filed and served within 21 days from the ruling date (26 March 2025). The court found the delay in filing the appeal was occasioned by the insurance company's failure to provide instructions, which constituted a satisfactory explanation under the law. The Applicant must also deposit the entire decretal sum into an interest-earning account in the joint names of the parties' advocates within 30 days.

Remedies

• Applicant required to deposit the entire decretal sum (Kshs 200,000 general damages, Kshs 27,600 special damages, Kshs 108,583.20 loss of earning capacity, costs, and interest) into an interest-earning account in the joint names of the parties' advocates within 30 days from the ruling date
• In default of fulfilling the 21-day appeal filing deadline or 30-day deposit requirement, the application shall be deemed dismissed with costs, granting the Respondent liberty to execute the judgment
• The costs of this application will be in the cause, meaning the Applicant is responsible for bearing the associated costs
• Applicant granted leave to file an appeal out of time against the judgment delivered on 29.05.2024 in CMCC No. E10625 of 2021, with the appeal required to be filed and served within 21 days from the date of this ruling

Monetary Damages

Legal Principles

• The court ordered that the costs of the application be 'in the cause,' meaning the successful party will bear the costs. This reflects standard costs principles where the losing party typically pays the winner's costs unless otherwise specified.
• The court exercised its discretion to grant leave to appeal out of time by evaluating factors such as the length of delay, reasons for delay, chances of appeal success, potential prejudice to the respondent, and public importance. This aligns with established judicial review principles emphasizing proportionality and Wednesbury reasonableness in discretionary decisions.
• The court determined that procedural non-compliance with Order 9 Rule 9 (changing advocates after judgment) was not fatal to the appeal application. It emphasized that appeals are independent suits and not bound by procedural rules governing the primary case, as affirmed by prior rulings like Kenya Pipeline Company Limited v Lucy Njoki Njuru.

Precedent Name

• Kenya Shell Ltd. v. Kibiru & others
• Edith Gichungu Koine v Stephen Njagi Thoithi
• Ngeno v Mosonik
• Amal Hauliers Limited v Abdulnasi Abukar Hassan
• Attorney General v Halal Meat Produces Limited
• Ndubiu Gitabi & Ano. v Anna Wambui Warugongo
• Mukuma v Abuoga

Cited Statute

• Civil Procedure Act
• Civil Procedure Rules
• Civil Procedure Rules 2010

Judge Name

Passage Text

• The court ought to fairly take into account the interests of the Respondent, who has been deprived of the benefits of his judgment, in addition to the Appellant's right to ventilate their case which the court should not be quick to deny.
• The Applicant has shown the Respondent has already started the process of execution and is thus deserving of an order for stay but with conditions.
• For the above reasons, the Applicant has satisfied the conditions for grant of leave to appeal out of time. The prayer in that respect (prayer (e)) as thus is merited and the same is hereby allowed. The appeal to be filed within 21 days from the date of this ruling.