[2004] KEHC 2492 (KLR)
The court found that the applicant failed to set out or demonstrate any grounds that satisfy the requirements of Section 72 of the Civil Procedure Act for a second appeal. The applicant neither exhibited a memorandum of appeal nor stated the grounds relied upon in the application. As a result, the court was unable...
Source-derived case information.
- Citation
- [2004] KEHC 2492 (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 to File Second Appeal and Stay
- Outcome
- application dismissed with costs; conditional stay of execution granted for 14 days
- 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 to File Second Appeal and Stay
Legal Issues
- 1 Whether the applicant has satisfied the requirements under Section 72 of the Civil Procedure Act to warrant extension of time to file a second appeal.
- 2 Whether the court should grant a stay of execution pending the intended appeal.
Ratio Decidendi
The court found that the applicant failed to set out or demonstrate any grounds that satisfy the requirements of Section 72 of the Civil Procedure Act for a second appeal. The applicant neither exhibited a memorandum of appeal nor stated the grounds relied upon in the application. As a result, the court was unable to consider the existence of an arguable second appeal and therefore found no merit in the application for extension of time. The application was dismissed with costs. However, the court granted a conditional stay of execution for 14 days upon payment of the decretal amount into a joint account held by both advocates within 7 days.
Court Disposition
application dismissed with costs; conditional stay of execution granted for 14 days
Orders
- The application for extension of time to file a second appeal is dismissed with costs.
- A stay of execution is granted for 14 days upon payment by the applicant of the decretal amount into a joint account in both advocates' names within 7 days.
Full Case Text
Judgment text and source record
26 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