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High CourtAllowedMilimani CMCC No. 2135 of 2013 (application dated 11th April, 2018)

Applicants v Respondent (extension of time and stay of execution application)

High Court of Kenya
20 June 2019
1,064 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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If you are appealing a court decision, you can get more time and stop enforcement, provided you show a good reason for the delay and offer security.

What this practically means

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Executive summary

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This was an application dated 11th April, 2018 seeking leave to file a Memorandum of Appeal out of time against the judgment of Honourable Mbeja, Senior Resident Magistrate, delivered on 23rd January, 2018 in Milimani CMCC No. 2135 of 2013, together with a stay of execution of that judgment and decree pending the intended appeal, and a deeming order for the draft Memorandum of Appeal. The judgment below had been entered against the Applicants on 100% liability for Ksh.1,200,000/= general damages, Ksh.186,802/= special damages, costs and interest. The Applicants attributed the delay in filing the appeal to the resignation of the advocate previously handling the matter at Ms. Kairu & McCourt without notice, and expressed apprehension that the Respondent was a person of unknown means who might be unable to refund the decretal sum, offering security. The Respondent opposed, alleging promises to pay the decretal sum and noting that the alleged resignation was unexhibited and the advocate unnamed. The court applied Section 79G of the Civil Procedure Act and Order 42 rule 6(2) of the Civil Procedure Rules, adopting the Court of Appeal's tests in Aviation Cargo Limited v St. Mark Freight Services Limited and National Industrial Credit Bank Ltd v Aquinas Francis Wasike. Finding the roughly three-month delay explained, and the Respondent silent on his means once the fear of inability to refund was raised, the court allowed the application on condition that the decretal sum be deposited in a joint interest-earning account of counsel or in court within 30 days, with costs to the Respondent.

Key legal issues

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01

Extension of time to file an appeal under Section 79G

Holding

The court has discretion to extend time where the appellant shows good and sufficient cause; the delay of about 3 months was explained, albeit without documentary support, and was accepted.

Reasoning

Section 79G requires appeals within 30 days unless the appellant shows good and sufficient cause. The court applied the Aviation Cargo test: delay must not be inordinate or, if inordinate, must be plausibly explained. The Applicants explained the delay by the resignation of the handling advocate without notice; the court found the explanation sufficient to exercise discretion in their favour.

p. 2
02

Stay of execution under Order 42 rule 6(2)

Holding

Substantial loss was demonstrated through the Applicants' apprehension that the Respondent is a person of unknown means; the Respondent gave no evidence of resources, so the burden shifted to him.

Reasoning

Order 42 rule 6(2) requires substantial loss, absence of unreasonable delay and security. Relying on National Industrial Credit Bank Ltd v Aquinas Francis Wasike, the court held that once a reasonable fear of inability to refund is expressed, the evidential burden shifts to the respondent, who said nothing about his means. The court balanced the parties' interests by conditioning the stay on deposit of the decretal sum.

p. 2

Legal principles established

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  • Once an applicant expresses a reasonable fear that a respondent would be unable to refund the decretal sum, the evidential burden shifts to the respondent to show his resources.

Court orders

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  1. 1.Leave granted to lodge the Memorandum of Appeal out of time, on condition that the decretal sum is deposited in a joint interest-earning bank account of the counsels for the parties or in court within 30 days from the date of the order
  2. 2.Stay of execution of the judgment and decree in Milimani CMCC No. 2135 of 2013 pending the intended appeal, subject to the same deposit condition
  3. 3.Costs of the application to the Respondent
On appeal from
Senior Resident Magistrate's Court (Milimani)
Milimani CMCC No. 2135 of 2013
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Order 50 rule 6 and Order 42 rule 6(2) of the Civil Procedure Rules, 2010; Section 3A and Section 95 of the Civil Procedure Act

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, "Applicants v Respondent (extension of time and stay of execution application)", Case Analysis (2019). Milimani CMCC No. 2135 of 2013 (application dated 11th April, 2018). Source: 

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