[2010] KEHC 2801 (KLR)
The court found that although the applicant did not sufficiently explain the inordinate delay in seeking leave to appeal out of time, it was in the interests of justice to allow the applicant an opportunity to be heard on appeal. However, the application for stay of execution was procedurally defective as it failed...
Source-derived case information.
- Citation
- [2010] KEHC 2801 (KLR)
- Parties
- Applicant: Alfred Muriithi Njeru; Respondent: Simon Munyi Gachoki
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case 119 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- Leave to appeal out of time granted; stay of execution refused; each party to bear its own costs.
- Judges
- J Karanja
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Procedural Defects, Grounds for Stay, Timeliness of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alfred Muriithi Njeru
Applicant
Simon Munyi Gachoki
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time.
- 2 Whether the applicant is entitled to an order for stay of execution pending appeal.
Ratio Decidendi
The court found that although the applicant did not sufficiently explain the inordinate delay in seeking leave to appeal out of time, it was in the interests of justice to allow the applicant an opportunity to be heard on appeal. However, the application for stay of execution was procedurally defective as it failed to cite the specific rule under Order XXI, and the applicant did not attempt to satisfy the substantive requirements for a stay, such as demonstrating sufficient cause, timeliness, potential loss, or offering security. Consequently, leave to appeal out of time was granted, but the prayer for stay of execution was denied.
Court Disposition
Leave to appeal out of time granted; stay of execution refused; each party to bear its own costs.
Orders
- Leave is granted to the applicant to file an appeal out of time within 14 days from the date of this ruling.
- The prayer for stay of execution is refused.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Miscellaneous Case 119 of 2008
ALFRED MURIITHI NJERU…………………………………………..APPLICANT
VERSUS
SIMON MUNYI GACHOKI………………………………………..RESPONDENT
R U L I N G
I have heard counsel on the application dated 22/8/2009. The application basically seeks 2 orders:- i.e an order for leave to appeal out of time under Order XLIX Rules 5 of the Civil Procedure Rules and an order for stay of execution. I have considered the grounds on its face and the supporting affidavit dated 22/8/2008. Counsel for the Respondent filed what he dubbed a notice of intention to raise a preliminary objection dated 11/11/2009 but what he did in court was not to raise the preliminary objection but to oppose the application. I had not seen the said document then as the court copy had been misfiled and I was meant to believe that the said document contained grounds of opposition. It was on that premise that we proceeded. I have looked at the document now and I must say that both counsel misled the court on the nature of the same. I have considered the same along with the said application. I note that the subject matter herein is land and usually whichever party loses always feels that they lost unfairly and they should therefore be given another chance. I agree with Mr Githinji for the Respondent that the inordinate delay was not sufficiently explained. I will nonetheless allow the applicant leave to file an appeal out of time so that he can be heard.
On the 2nd prayer for stay of execution, I find that however magnanimous and indulgent, I want to be to the applicant, I cannot give him that order.
Firstly, he has not moved the court properly. His application has only cited Order XX1 with no Rule whatsoever. Order XX1 has 91 Rules. It is not my duty or responsibility to pick out the Rule he wanted to rely on. On that ground only, that prayer would fail.
I nonetheless also note that the defect notwithstanding, counsel did not even remotely attempt to convince the court that the stay was merited. He did not even make a feeble attempt to satisfy the necessary ingredients an applicant needs to satisfy before a stay can be granted. Does he have sufficient cause; was the application filed timeously; will be suffer any loss or prejudice if the stay is not granted; will his intended appeal be rendered nugatory; has he offered any security for costs etc. I have no basis whatsoever to grant the prayer for stay of execution. I will therefore grant then leave to file the appeal out of time but decline to grant them a stay of the lower court’s Judgment and decree. The Appeal must be filed within 14 days from the date of this ruling.
Each party will also bear its own costs of the application.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 26th day of April 2010.
In presence of:-Mr. Kariithi for Applicant.