[2003] KEHC 841 (KLR)
The court found that the application for stay of execution was incompetent because no valid appeal was pending; the Notice of Appeal was filed out of time, contrary to the mandatory 14-day period prescribed by the Court of Appeal Rules. The plaintiff did not seek an extension of time to regularize the late filing....
Source-derived case information.
- Citation
- [2003] KEHC 841 (KLR)
- Parties
- Plaintiff: Abdikarim Saleh Muhsin; Defendant: Joseph Sempa; Objector: F.J. Church & Sons Ltd; Objector: 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, Time Limits for Appeal, Laches
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdikarim Saleh Muhsin
Plaintiff
Joseph Sempa
Defendant
F.J. Church & Sons Ltd
Objector
P & O Nedlloyd
Objector
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the application for stay of execution is competent in the absence of a valid appeal.
- 2 Whether the Notice of Appeal was lodged within the prescribed time under the Court of Appeal Rules.
- 3 Whether the court has jurisdiction to grant a stay when the subject matter has already been released and exported.
Ratio Decidendi
The court found that the application for stay of execution was incompetent because no valid appeal was pending; the Notice of Appeal was filed out of time, contrary to the mandatory 14-day period prescribed by the Court of Appeal Rules. The plaintiff did not seek an extension of time to regularize the late filing. Furthermore, the court accepted the respondents' argument that the subject matter of the dispute—the container and goods—had already been released and exported, making any stay order ineffective and beyond the court's jurisdiction. The court concluded that the plaintiff was guilty of laches for failing to act promptly and dismissed the application 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
18 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