[2017] KEHC 4831 (KLR)
The court found that the applicants failed to provide a plausible or excusable reason for the delay in filing the appeal. The explanation that the insurance company did not give instructions was not acceptable, as the insurance company was not a party to the litigation. Furthermore, the applicants' advocate was...
Source-derived case information.
- Citation
- [2017] KEHC 4831 (KLR)
- Parties
- Applicant: Joel Kimetei Arap Langat; Applicant: Rael Chesang Kemei; Respondent: Anastasia Auma Ondiek (Suing as the legal rep. in the estate of Lenus Otieno Ondieki, Deceased)
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 55 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application dismissed with costs to the respondent
- Judges
- EM Muchoki
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Kimetei Arap Langat
Applicant
Rael Chesang Kemei
Applicant
Anastasia Auma Ondiek (Suing as the legal rep. in the estate of Lenus Otieno Ondieki, Deceased)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have demonstrated sufficient cause for the delay in filing the appeal out of time.
- 2 Whether a temporary stay of execution should be granted pending the hearing of the application and intended appeal.
- 3 Whether the reasons for delay provided by the applicants are excusable.
Ratio Decidendi
The court found that the applicants failed to provide a plausible or excusable reason for the delay in filing the appeal. The explanation that the insurance company did not give instructions was not acceptable, as the insurance company was not a party to the litigation. Furthermore, the applicants' advocate was aware of the judgment as early as 1st July 2016, as evidenced by the consent for payment of costs. The circumstances of the present case were distinguishable from those in the authorities cited by the applicants. Consequently, the application for leave to appeal out of time and for stay of execution was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 25th April 2017 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISC. CIVIL APPLICATION NO. 55 OF 2017
ANATASIA AUMA ONDIEK(Suing as the legal rep. in the estate of
LENUS OTIENO ONDIEKI (DECEASED) ….............. RESPONDENTS
VERSUS
JOEL KIMETEI ARAP LANGAT …............................ 1ST APPLICANT
RAEL CHESANG KEMEI …....................................... 2ND APPLICANT
RULING
The Notice of Motion dated 25th April 2017 has three prayers:-
(a) A temporary stay of execution pending the hearing of this application and the appeal to be filed.
(b) That leave to file appeal out of time be granted.
(c) Costs of the application.
The grounds for the application are that the time for filing the appeal has lapsed and the applicant wishes to appeal against the judgment delivered on 15th June 2016. Further that the stay of execution granted by the lower court has lapsed and that delay in filing the appeal was on the part of the Advocate who did not update the defendant of the judgment.
The application was canvassed orally on 23rd May 2017. I note however that Counsel for the applicant filed written submissions on 6th June 2017.
I have considered the application and all the material placed before me. I am not persuaded that it has merit. Whereas in the supporting affidavit it is stated that the delay arose from the mistake of Counsel not informing the applicants of the judgment in his submissions Counsel states that the delay arose because the Insurance Company did not give him instructions. The Insurance Company was not a party in the litigation and the reason given for the delay is not plausible. Neither is it excusable noting that the Advocate for the applicants was aware of the judgment as early as 1st July 2016 when they entered into a consent for payment of the costs (see annexture “AAO-2”. The circumstances here are very different from those in the two cases cited and hence distinguishable. The application is dismissed with costs to the respondent.
E. N. MAINA
JUDGE
29/6/2017
Signed, dated and delivered in open Court in presence of:-
Odumbe holding brief for Okoth for Respondent
Court Assistant: Serah Sidera