[2016] KEHC 5781 (KLR)
The court found that the ex parte judgment was entered in the absence of the defendants, who only became aware of it during execution. The explanation for the delay in challenging the judgment was accepted as reasonable. The court also found that the intended appeal raised weighty issues of law, justifying the grant...
Source-derived case information.
- Citation
- [2016] KEHC 5781 (KLR)
- Parties
- Respondent: Alice Wanjiku Njagi; Applicant: Gilbert Muriuki Munyugi; Applicant: Benson Muriithi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 140 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Application allowed with conditions.
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Ex Parte Judgment, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Wanjiku Njagi
Respondent
Gilbert Muriuki Munyugi
Applicant
Benson Muriithi
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the defendants are entitled to a stay of execution of the ex parte judgment pending appeal.
- 2 Whether leave to appeal out of time against the magisterial court's ruling should be granted.
- 3 Whether the delay in challenging the judgment was sufficiently explained.
Ratio Decidendi
The court found that the ex parte judgment was entered in the absence of the defendants, who only became aware of it during execution. The explanation for the delay in challenging the judgment was accepted as reasonable. The court also found that the intended appeal raised weighty issues of law, justifying the grant of leave to appeal out of time and a stay of execution. However, these orders were made conditional upon the defendants depositing the entire decretal amount in court within three months, failing which the orders would lapse automatically.
Court Disposition
Application allowed with conditions.
Orders
- Leave to appeal out of time is granted to the defendants.
- Stay of execution of the ex parte judgment is granted pending hearing and determination of the intended appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC CIVIL APPLICATION 140 OF 2015
ALICE WANJIKU NJAGI....................................PLAINTIFFS/RESPONDENT
VERSUS
GILBERT MURIUKI MUNYUGI
BENSON MURIITHI ..........................................DEFENDANTS/APPLICANTS
RULING
The defendants have through their notice of motion applied for stay of execution of the magisterial ex-parte jdugement that was delivered on 6th November 2014 pending the hearing and determination of their intended appeal. They have also sought leave to appeal out of time against the ruling of the magisterial court delivered on 28th May 2015, which refused to set aside the ex parte judgement. Their application is supported by the supporting affidavit of Sandra Nyakweba. According to her, the proceedings that gave rise to the judgement and ruling complained of were conducted in their counsel's absence. It is also her affidavit evidence that they are able to furnish reasonable security. She also states in that affidavit that the intended appeal raises weighty issues of law (paragraph 9 of the affidavit).
The application is opposed by the plaintiff. According to the plaintiff, the application is bad in law and is an abuse of the court process. She further states that there was and there is inordinate delay in prosecuting the applications, which in aggregate amounts to over one year (Para 3 (e) of the affidavit). It is also her evidence that the defendants have been filing several applications in order to deny her from enjoying the fruits of the judgement that was entered in her favour.
I have perused the affidavit evidence and the annexes of both parties and the rival submissions of their counsel. I find that the main judgement was obtained in the absence of the defendants. They only came to learn of it during the execution proceedings. I accept their explanation of the delay that led them not to challenge the judgement timeously.
I also find that there are weighty issues of law in the intended appeal. In the circumstances, the defendants should be given an opportunity to have their day in court. However, as a condition of being granted leave to appeal and the stay of execution the defendants should deposit the whole decretal amount in the sum of Kshs. 2,081,626/- in court pending the hearing of their applications. In this regard they are required to deposit the amount of money within three months from today failing which the orders granting leave and stay will automatically lapse.
Costs of this application will be costs in cause.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 13th day of APRIL 2016
In the presence of Mr Kisinga for the defendants and in the absence of the plaintiff
Court clerk Njue
J.M. BWONWONGA
JUDGE
13. 04. 16