[2003] KEHC 651 (KLR)
The court found that the plaintiff's notice of appeal was filed out of time, contrary to the mandatory 14-day period stipulated by the Court of Appeal Rules. No application for extension of time was made. The court further held that the subject matter of the dispute—the container and goods—had already been released...
Source-derived case information.
- Citation
- [2003] KEHC 651 (KLR)
- Parties
- Plaintiff: Abdikarim Saleh Muhsin; Defendant: Joseph Sempa; Respondent: F.J. Church & Sons Ltd; Respondent: P & O Nedlloyd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 391 of 2001
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Notice of Appeal, Laches, Appeal Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Abdikarim Saleh Muhsin
Plaintiff
Joseph Sempa
Defendant
F.J. Church & Sons Ltd
Respondent
P & O Nedlloyd
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the plaintiff is entitled to a stay of execution pending appeal despite filing the notice of appeal out of time.
- 2 Whether the court has jurisdiction to grant a stay where the subject matter has already been released and exported.
- 3 Whether the plaintiff is guilty of laches in seeking the stay.
Ratio Decidendi
The court found that the plaintiff's notice of appeal was filed out of time, contrary to the mandatory 14-day period stipulated by the Court of Appeal Rules. No application for extension of time was made. The court further held that the subject matter of the dispute—the container and goods—had already been released and exported, and thus was no longer within the court's jurisdiction. Granting a stay would therefore serve no practical purpose. The court also found the plaintiff guilty of laches for failing to act promptly. Consequently, the application for stay of execution was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the objectors and defendant.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL CASE NO.391 OF 2001
ABDIKARIM SALEH MUHSIN……………………….………PLAINTIFF =V E R S U S= JOSEPH SEMPA…………………………………………..…DEFENDANT A N D 1. F.J. CHURCH & SONS LTD 2. P & O NEDLLOYD………………………………….OBJECTORS
R U L I N G
There is a Ruling made by Hon. Commissioner J. Khaminwa on 28/6/2002 following an application by Objectors on release of container No. POCU 0519999972/3 together with goods therein. The container cum goods had been attached. A stay was granted for 7 days to enable the Plaintiff to appeal if need be. Nothing appears to have been done until 23/7/02 when the Plaintiff filed an application for stay of execution pending:
“determination of the appeal preferred against such ruling on such terms as this court deems fit”.
The application for stay is opposed by Mr. Omolo for the Objectors and Mr. Sifuna for Defendant.
As far as I can see there is no appeal pending though a Notice of Appeal has been given – but out of time. It is incompetent. Appeal is deemed to have been filed if, under the Rules of that court, Notice of Appeal has been given. The Court of Appeal Rules provide that Notice must be lodged within 14 days of the date of that decision against which it is desired to appeal.
The order which is intended to appeal against was made on 26/6/02 and notice was lodged on 16/7/02. This was out of time. The party can of course apply for extension of time but then, this was not done.
Mr. Omolo for the Objectors further informs me that if the court is inclined to order a stay, such order would be nugatory as the subject matter has been released and exported and no longer within this court’s jurisdiction. I would agree with both Mr. Omolo for Objectors and Mr. Sifuna for the Defendant that the Plaintiff is guilty of latches. They should have lodged Notice of Appeal within 14 days and not one month later.
This application is dismissed with costs.
Dated at Mombasa this 28th day of March, 2003.
L. P. OUNA
J U D G E