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High CourtPartially AllowedMiscellaneous Application dated 18th September 2018 (arising from Kericho CMCC No. 323 of 2014)· [2019] KEHC 9803 (KLR)

Kenya Commercial Bank Ltd v Thomas Kimagut Sambu & Another

High Court of Kenya
27 February 2019
MNMUMBI NGUGI
3,094 words in judgment
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The bottom line

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If you are late filing an appeal, the court may grant an extension, but you must prove substantial financial loss to stop payment.

What this practically means

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Executive summary

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The applicant, the defendant in Kericho CMCC No. 323 of 2014, sought leave to appeal out of time and stay of execution of a decree of Kshs 234,937 (refund of purchase price plus interest) entered against it on 6 June 2018 after it failed to attend the hearing. The suit arose from a public auction of the bank's charged property in which the 2nd respondent was the highest bidder; the bank failed to furnish the discharge of charge, the 1st respondent (the auctioneer) refunded the purchase price, and he sought reimbursement from the bank. The respondents initially raised a preliminary objection based on a similar application pending before the trial court, but by consent the parties abandoned those applications and proceeded before the High Court. The court, applying section 79G of the Civil Procedure Act and the Thuita Mwangi conditions, found the delay not inordinate because the applicant had promptly filed a set-aside application dismissed on 12 September 2018, and this application followed six days later. Although the court found the appeal's chances of success weak, it granted leave to appeal out of time, holding that a party should not lightly be denied a chance to pursue justice and that no prejudice to the respondents was demonstrated. On stay of execution under Order 42 Rule 6, the court found no undue delay but held that substantial loss was not demonstrated: the decretal sum was relatively low and the 1st respondent, a licensed auctioneer of 36 years, could repay it if the appeal succeeded. Payment of a money decree does not render an appeal nugatory. The application partially succeeded; the respondents were awarded costs.

Key legal issues

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01

Extension of time to file appeal

Holding

Leave granted despite weak chances of success, because delay was not inordinate and no prejudice to respondents was demonstrated

Reasoning

The judgment was delivered on 6 June 2018; the applicant immediately filed an application to set aside, dismissed on 12 September 2018, and filed this application six days later. The court found the delay not inordinate, found the appeal's chances weak, but held a party should not lightly be denied a chance to pursue justice and no prejudice was shown.

p. 3
02

Stay of execution pending appeal

Holding

Refused; substantial loss not demonstrated

Reasoning

Order 42 Rule 6(2) requires substantial loss, no unreasonable delay and security. Delay was not undue, but the decretal sum of Kshs 234,937 was relatively low and the 1st respondent, a licensed auctioneer of 36 years, was uncontrovertedly able to refund it if the appeal succeeded. Payment of a money decree does not render an appeal nugatory.

p. 4

Legal principles established

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  • Leave to appeal out of time under section 79G requires good reason for the delay, assessed against the length of and reason for delay, chances of success and prejudice to the respondent
  • Stay of execution pending appeal requires demonstration of substantial loss, absence of unreasonable delay, and security; a money decree paid to a litigant of means does not render an appeal nugatory

Court orders

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  1. 1.Leave granted to the applicant to file its appeal out of time
  2. 2.Application for stay of execution declined
  3. 3.Respondents awarded the costs of the application

Authorities

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Legislation

  • Civil Procedure Actsection 79G
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure Code (as cited by respondent)Order 19 rule 3(1)

Cases cited (7)

  • M. Paul Musili Wambua vs AG
    (2015) eKLR

    Unfettered discretion of the court to extend time for filing an appeal

  • Gichohi Susana vs Phillip Muchoki Ngugi & Another
    (2015) eKLR

    Grant of stay of execution where appeal has chances of success

  • G. N. Muema t/a Mt. View Maternity & Nursing Home vs Miriam Maalim Bisheru & Another
    2018

    Stay of execution principles

  • Coftea Machinery Services Ltd vs Akiba Bank Ltd & 2 Others
    (2004) eKLR

    Respondents' submission on entitlement to decretal sum

  • Kenya Shell Ltd vs Benjamin Kenya Kibor & Ruth Wairimu Karuga
    (1982-1988) 1023

    A successful litigant should not be denied the fruits of his judgment; payment of a money decree does not render an appeal nugatory

  • Salama Mahmoud vs Kikas Investment Ltd & Another
    (2014) eKLR

    A delay of 5 months is inordinate

  • Thuita Mwangi vs Kenya Airways Ltd
    [2003] eKLR

    Conditions for extension of time: length and reason of delay, chances of success, prejudice to respondent

On appeal from
Kericho Chief Magistrate's Court
CMCC No. 323 of 2014
Jurisdiction invoked
Section 79G of the Civil Procedure Act (leave to appeal out of time) and Order 42 Rule 6 of the Civil Procedure Rules (stay of execution)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Commercial Bank Ltd v Thomas Kimagut Sambu & Another", Case Analysis (2019). Miscellaneous Application dated 18th September 2018 (arising from Kericho CMCC No. 323 of 2014). Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.