[2002] KEHC 658 (KLR)
The court found that the delay in filing the appeal was not caused by the applicant but by the court's failure to supply certified proceedings. Exercising its discretion under Order 49 rule 5 of the Civil Procedure Rules, the court held that justice required an extension of the stay order to allow the applicant to...
Source-derived case information.
- Citation
- [2002] KEHC 658 (KLR)
- Parties
- Plaintiff: Amin Ladak; Defendant: Rothman’s Holdings Ltd; Defendant: Naushad Jiwa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 458 of ??
- Procedural Posture
- Stay Application / Ruling on Extension of Stay Pending Appeal
- Outcome
- Application for extension of stay granted.
- Legal Topics
- Stay of Execution, Extension of Time, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amin Ladak
Plaintiff
Rothman’s Holdings Ltd
Defendant
Naushad Jiwa
Defendant
Procedural Posture
Stay Application / Ruling on Extension of Stay Pending Appeal
Legal Issues
- 1 Whether the court should extend the time for the stay order pending appeal.
- 2 Whether the delay in filing the appeal was occasioned by the applicant or by the court process.
Ratio Decidendi
The court found that the delay in filing the appeal was not caused by the applicant but by the court's failure to supply certified proceedings. Exercising its discretion under Order 49 rule 5 of the Civil Procedure Rules, the court held that justice required an extension of the stay order to allow the applicant to prosecute the intended appeal. The applicant was already in possession of the disputed premises and had complied with the condition of depositing KES 40,000 as security. Therefore, the court extended the stay for a further fifteen months from the expiry of the previous order, with costs to be borne by the applicant.
Court Disposition
Application for extension of stay granted.
Orders
- Time for stay order extended for a further period of fifteen months from the date of expiration of the previous order.
- Costs to be borne by the applicant in any event.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL CASE NO.458 OF 200AMIN LADAK ……………………………………………….. PLAINTIFF Versus ROTHMAN’S HOLDINGS LTD …………………….. 1ST DEFENDANT NAUSHAD JIWA …………………………………….. 2ND DEFENDANTR U L I N G
By Notice of Motion dated 24/1/2002 the Plaintiff seeks order to extend time for Stay order which was granted for a period of 6 months and was due to expire on 27/1/2002. The stay is pending hearing of a proposed appeal. The reason for the delay of the appeal is that the certified proceedings have not been supplied by the court to enable the appellant to prepare record of appeal.
The merits of the application for stay have already been considered by court and the only concern is that the proposed appeal should be prosecuted without delay. As it is there is delay caused not by the applicant but by the court process. The court has discretion to extend time under Order 49 rule 5.
“The court shall have power to enlarge such time upon terms if any as the justice of the case may require and such enlargement may be ordered although application of the same is not made until after expiration of the time appointed …..”
In the present case the applicant is in possession of the premises in dispute. I also note that the court ordered deposit of Shs.40,000/- as a condition of stay.
In the circumstances I hereby extend the time granted for a further period of fifteen months from the date of expiration of the order.
Costs shall be bone by the applicant in any event.
Dated at Mombasa this 10th Day of May, 2002.
J. KHAMINWA
COMMISSIONER OF ASSIZE