[2012] KEHC 1826 (KLR)
The court found that the applicant failed to provide any credible or satisfactory explanation for the delay in filing the appeal out of time. The supporting affidavit did not address the cause of delay, and even during oral submissions, the applicant avoided explaining the real reason for the delay. The court...
Source-derived case information.
- Citation
- [2012] KEHC 1826 (KLR)
- Parties
- Applicant: Alloys Steel Casting Limited; Respondent: Simon Imwene Epalat
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 522 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application dismissed with costs
- Judges
- DA Onyancha
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Court Discretion, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alloys Steel Casting Limited
Applicant
Simon Imwene Epalat
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 has provided sufficient cause for delay in filing an appeal out of time.
- 2 Whether the applicant is entitled to a stay of execution pending the intended appeal.
Ratio Decidendi
The court found that the applicant failed to provide any credible or satisfactory explanation for the delay in filing the appeal out of time. The supporting affidavit did not address the cause of delay, and even during oral submissions, the applicant avoided explaining the real reason for the delay. The court accepted the respondent's assertion that both parties were properly informed of the judgment delivery date. The court concluded that the application was filed as an afterthought, likely prompted by the commencement of execution proceedings, and not due to any genuine lack of notice. As a result, the court held that the applicant did not deserve the court's discretion in its favour...
Court Disposition
application dismissed with costs
Orders
- The application for leave to appeal out of time and for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION NUMBER 522 OF 2012
ALLOYS STEEL CASTING LIMITED. ........................................................................ APPLICANT
VERSUS
SIMON IMWENE EPALAT. ....................................................................................... RESPONDENT
R U L I N G
The application before the court is dated 18th September, 2012. It seeks leave to appeal out of time and if granted, a stay of execution pending the hearing and final determination of the intended appeal.
The lower court judgment or ruling was delivered on 24th July, 2012. It is not in dispute that both parties were not in court in attendance to the judgment delivery. The applicant asserts that neither party knew the date intended for the delivery of the judgment of the lower court. The Respondent, on the other hand, asserted that both parties were properly informed in court by the court which heard the suit, that judgment would be delivered on 24th July, 2012.
I have perused the supporting affidavit which should and was intended to explain the reason why there was delay or why both parties did not attend court on 24th July, 2012 to take the judgment. The affidavit carefully and conveniently avoided to explain the cause of delay to file an appeal. Even in court during the agitation of this application, the applicant avoided explaining the real cause of delay. This court accepts that Respondent’s assertion that parties were properly informed of the date when the lower court judgment would be delivered but failed to attend court for reasons known to them.
This application was filed about two months after the judgment was delivered. It, however, in my opinion, appears to have been filed on second thought and with the probable intention to delay the Respondent from realizing its decree which, in any case, was in the process of being realized through execution. The impression created in the mind of the court is that, it was the proclamation issuance that awoke the appellant from slumber. It was upon the Applicant to persuade the court that it deserves a favourable exercise of courts discretion. It has failed in that respect.
I have carefully considered the application. I have come to the conclusion that this application for the reasons discussed above, has no merit and does not deserve a favourable exercise of court’s discretion. It is hereby dismissed with costs. Orders accordingly.
Dated and delivered at Nairobi this 10th day of October, 2012.
......................................................
D A ONYANCHA
JUDGE