[2024] KEHC 11016 (KLR)

[2024] KEHC 11016 (KLR)

The court found that the applicant had demonstrated sufficient cause for the delay in filing the appeal and that the intended appeal was not frivolous. The court exercised its discretion to grant leave to appeal out of time. On the issue of stay of execution, the court held that the applicant had satisfied the...

Source-derived case information.

Citation
[2024] KEHC 11016 (KLR)
Parties
Applicant: Al-Rahim Trading Limited; Respondent: Robinas Oyara Makana & 2 others
Court
High Court
Court Station
High Court at Kisumu
Jurisdiction
Kenya
Case Number
Miscellaneous Application E005 of 2024
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Outcome
application allowed with conditions
Judges
MS Shariff
Legal Topics
Leave to Appeal Out of Time, Stay of Execution, Decretal Sum Deposit
Source Language
en
Civil Procedure Leave to Appeal Out of Time Stay of Execution Decretal Sum Deposit

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Parties

Al-Rahim Trading Limited

Applicant

Robinas Oyara Makana & 2 others

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution

Legal Issues

  1. 1 Whether the applicant should be granted leave to file an appeal out of time against the judgment in Kisumu SCC No. E222 of 2023.
  2. 2 Whether an order of stay of execution of the judgment should be granted pending the intended appeal.
  3. 3 What conditions, if any, should be imposed for the grant of stay of execution.

Ratio Decidendi

The court found that the applicant had demonstrated sufficient cause for the delay in filing the appeal and that the intended appeal was not frivolous. The court exercised its discretion to grant leave to appeal out of time. On the issue of stay of execution, the court held that the applicant had satisfied the requirements under Order 42 Rule 6 of the Civil Procedure Rules by showing that substantial loss may result if stay is not granted and by offering security for the due performance of the decree. The court therefore granted a conditional stay of execution pending the hearing and determination of the intended appeal, subject to the applicant depositing the decretal sum in a joint...

Court Disposition

application allowed with conditions

Orders

  • Leave is granted to the applicant to file an appeal out of time against the judgment in Kisumu SCC No. E222 of 2023 within 7 days.
  • An order of stay of execution of the judgment delivered on 25.10.2023 in Kisumu SCC No. E222 of 2023 is granted until the intended appeal is heard and determined, on condition that the applicant deposits Kshs.702,013 in a joint interest earning account of parties' advocates within 45 days.