[2004] KEHC 2401 (KLR)
The court found that the applicant failed to set out or demonstrate any grounds that satisfy the requirements for a second appeal under Section 72 of the Civil Procedure Act. The application did not exhibit a memorandum of appeal or specify the grounds relied upon, and therefore the court was unable to consider the...
Source-derived case information.
- Citation
- [2004] KEHC 2401 (KLR)
- Parties
- Plaintiff: Ahmed Khalifa; Respondent: Omar Ali Hemed
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 56 of 1997
- Procedural Posture
- Civil Appeal / Ruling on Application for Extension of Time and Stay Pending Appeal
- Outcome
- application dismissed with costs; temporary stay of execution granted on conditions
- Legal Topics
- Second Appeals, Extension of Time, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ahmed Khalifa
Plaintiff
Omar Ali Hemed
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Extension of Time and Stay Pending Appeal
Legal Issues
- 1 Whether the applicant has satisfied the requirements under Section 72 of the Civil Procedure Act for a second appeal.
- 2 Whether the applicant has provided sufficient grounds to warrant extension of time to file a notice of appeal out of time.
- 3 Whether stay of execution should be granted pending the intended appeal.
Ratio Decidendi
The court found that the applicant failed to set out or demonstrate any grounds that satisfy the requirements for a second appeal under Section 72 of the Civil Procedure Act. The application did not exhibit a memorandum of appeal or specify the grounds relied upon, and therefore the court was unable to consider the existence of an arguable second appeal. As a result, the application for extension of time and stay was found to be without merit and was dismissed with costs. However, a temporary stay of execution was granted for 14 days upon the applicant depositing the decretal amount in a joint account held by both advocates within 7 days.
Court Disposition
application dismissed with costs; temporary stay of execution granted on conditions
Orders
- The application for extension of time and stay is dismissed with costs.
- Stay of execution is granted for 14 days upon payment by the applicant of the decretal amount in a joint account in both advocates' names within 7 days.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 56 OF 1997
AHMED KHALIFA…………………………………………….PLAINTIFF
=V E R S U S=
OMAR ALI HEMED………………………………………RESPONDENT
R U L I N G
In this application the Applicant is seeking to file a second appeal against the judgment on appeal from subordinate court. Section 72 Civil Procedure Act, Cap.21 provides for second appeals to the Court of Appeal. The grounds upon which such a second appeal may be made are set out therein and numbered (a) – (c) inclusive.
Again, Section 79D prohibits any appeals on second appeals on grounds other than those set out under Section 72 aforesaid The Notice of Appeal to the Court of Appeal is filed by the Applicant but it is delayed by one day. This application seeks extension of time. The grounds of this application are set out in the application and also in the Affidavit in Support sworn by Omar Ali Hemed the Applicant. I have perused both documents carefully and although it appears this court had dismissed an application for leave to file an appeal, no ground is set out to satisfy the requirements set out under Section 72 of the Act. This was pointed out by this court in its ruling dated 8/9/2003.
Although the appeal may be as of right, the grounds specified under Section 72 must be complied with. It is therefore necessary for the Applicant to demonstrate that the intended appeal falls under the provisions of the said section either by exhibiting a memorandum of appeal or stating in the application what grounds he relies upon. As it is this court is unable to consider that there is an arguable second appeal at all in order to consider extending time or granting stay sought.
For these reasons I find no merit in this application and the same is dismissed with costs.
Dated at Mombasa this 19th day of March, 2004.
JOYCE KHAMINWA
J U D G E
Read in presence of :-
Mr. Khatib and
Mr. Munyithia Justus
Mr. Munyithia
I apply for certified copies of proceedings and Ruling.
Court: Let it be supplied.
I also apply for stay pending filing of formal application.
Mr. Khatib
I oppose the application. Let them give security.
Court:
Stay shall be granted for a period of 14 days upon payment by the Applicant of the decretal amount in a joint account in both Advocates names within the next 7 days.
JOYCE KHAMINWA
J U D G E