Automated Summary
Key Facts
The applicants, Horizon Coach Company Limited and Basari Company Limited, applied for leave to appeal out of time against a judgment from the Machakos Chief Magistrate's Court (Case No. 435 of 2015) dated 29th November 2019. The judgment ordered them to pay Kshs 2,368,240 (80% liability: Kshs 1,894,592) to Elizabeth Mutave Muli and others. They argued that their advocate left without proper handover, causing the delay. The respondents opposed, citing inordinate delay and lack of sufficient cause. The court granted leave to appeal but required the applicants to deposit half the decretal sum in a joint interest account within 30 days to stay execution pending the appeal. Costs were awarded to the respondents.
Issues
- Whether a stay of execution should be granted under Order 42 Rule 6, weighing the applicants' claim of substantial loss if the decretal sum is paid, the respondents' financial standing, and the requirement for security, while applying the overriding objective of procedural fairness and justice.
- Whether the court should grant leave to appeal out of time under Order 42 Rule 6 of the Civil Procedure Rules, considering the advocate's unexplained departure and the applicants' assertion of no inordinate delay, while balancing the respondents' claims of prejudice and the mandatory requirements for such applications.
Holdings
- The costs of the application were awarded to the respondent.
- The court granted leave to the applicants to file an appeal out of time, provided the Memorandum of Appeal is filed and served within 10 days from the ruling date. Failure to meet this deadline would result in the application being dismissed.
- A stay of execution of the decree was granted, conditional upon the applicant depositing half of the decretal sum (Kshs 1,894,592/-) in a joint interest-earning account under the advocates' names at Kenya Commercial Bank, Machakos, within 30 days. Non-compliance would lead to dismissal with costs and the respondent's right to execute the decree.
Remedies
- The court granted leave to the applicants to file an appeal out of time, allowing them to submit the Memorandum of Appeal within 10 days from the ruling date. Failure to comply would result in dismissal of the application.
- The court granted a stay of execution of the decree, provided the applicant deposits half of the decretal amount (Kshs 1,894,592/-) into a joint interest-earning account with the advocates in Kenya Commercial Bank within 30 days. Non-compliance would lead to dismissal with costs and allow the respondent to execute the judgment.
- The court awarded the costs associated with the application to the respondent, indicating the financial burden would fall on the respondents if the application is not complied with.
Monetary Damages
2368240.00
Legal Principles
The court emphasized the right to appeal despite time-barred deadlines, balancing the interests of parties under the overriding objective of the Civil Procedure Act. Key principles included demonstrating good cause for delay, avoiding prejudice to the respondent, and ensuring security for the decretal sum. The ruling highlighted the importance of proportionality and equality of arms in judicial discretion, referencing precedents like Kenya Shell Limited vs. Kibiru and Machira T/A Machira & Co Advocates vs. East African Standard (No 2) [2002] KLR 63.
Precedent Name
- Re: Global Tours & Travels Limited
- Charles Karuri Mbutu vs. Samuel Muhoro
- Edith Gichugu Koine vs. Stephen Njagi Thoithi
- Francis Njakwe Githiari & Another vs. Daniel Toroitich Arap Moi T/A Moi Educational Centre
- Machira T/A Machira & Co Advocates vs. East African Standard (No 2)
- Nduhiu Gitahi vs. Warugongo
- Caneland Ltd. & 2 Others vs. Delphis Bank Ltd.
- Kenya Commercial Bank Limited vs. Kenya Planters Co-Operative Union
- Nginyanga Kavole vs. Mailu Gideon
- Stephen Boro Gitiha vs. Family Finance Building Society & 3 Others
- Vishram Ravji Halai vs. Thornton & Turpin
- Union Insurance Co. OF Kenya Ltd.vs. Ramzan Abdul Dhanji and Nicholas Kiptoo Korir Salat vs. Independent Electoral and Boundaries Commission & 6 Others
- First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others
- Seventh Day Adventist Church East Africa Ltd. & Another vs. M/S Masosa Construction Company
- Kenya Shell Ltd vs. Benjamin Karuga Kibiru and Another
Cited Statute
- Civil Procedure Act
- Civil Procedure Rules
Judge Name
Odunga, J
Passage Text
- Accordingly, I grant leave to the applicants to file the appeal out of time. Let the Memorandum of Appeal be filed and served within 10 days from the date hereof. In default the application shall stand dismissed.
- I grant a stay of execution of the decree herein on condition that the Applicant deposits half of the decretal sum in joint interest earning account(s) in the names of the advocates for the parties herein in Kenya Commercial Bank, Machakos within 30 days from the date of this ruling and in default the application shall be deemed to have been dismissed with costs and the Respondent will be at liberty to execute.
- The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage...the court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in courts, which is to do justice in accordance with the law.