[2015] KEHC 5680 (KLR)
The court found that the failure by the trial court to issue the relevant notice of judgment delivery to the parties was not attributable to the applicant. The absence of evidence that the applicant was served with the notice justified the grant of leave to appeal out of time. The court further held that no...
Source-derived case information.
- Citation
- [2015] KEHC 5680 (KLR)
- Parties
- Applicant: Rev. Apollo Moyi; Respondent: George Onyango Onyango
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 319 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Judgment
- Outcome
- application allowed
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Service of Judgment Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rev. Apollo Moyi
Applicant
George Onyango Onyango
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Judgment
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time.
- 2 Whether the applicant is entitled to a stay of execution of the lower court's judgment pending appeal.
- 3 Whether failure to serve judgment notice vitiated the lower court proceedings.
Ratio Decidendi
The court found that the failure by the trial court to issue the relevant notice of judgment delivery to the parties was not attributable to the applicant. The absence of evidence that the applicant was served with the notice justified the grant of leave to appeal out of time. The court further held that no prejudice would be suffered by the respondent if the application was allowed, as he would have the opportunity to challenge the appeal. The application was therefore allowed, and the applicant was granted 14 days to file and serve the appeal.
Court Disposition
application allowed
Orders
- The applicant is granted leave to file and serve his appeal within 14 days from the date of this ruling.
- Costs of this application to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
MISC. APPLICATION NO. 319 OF 2013
REV. APOLLO MOYI...................................APPLICANT
VERSUS
GEORGE ONYANGO ONYANGO................RESPONDENT
R U L I N G
The application dated 23-12-2013 prays among others for leave to file application out of time and stay of the lower court's judgment pending the determination of the appeal. The application has raised several issue and of particular significance is that the lower court delivered its judgment without the relevant notice and that he only learned of the same when the respondent taxed his bill.
The respondent has opposed the same vide replying affidavit dated6-2-2014. The respondent argues that the appellant was economical with the truth and that he was given all the opportunity to challenge the judgment. In any event he has brought the application six months after the delivery of judgment.
From the reading of the rival affidavits it appears to me that there was complicity on the part of the trial court not issuing the relevant notice to the parties. This cannot be faulted on the part of the applicant. The parties have not exhibited the decree from the court showing that the respondent was awarded a sum of Kshs. 250,000/=. That information is however contained in the replying affidavit which has not been controverted.
Taking into consideration the above observation it would not be fair to disallow the applicant's application. There is no prejudice which shall be suffered by the respondent. He shall have the opportunity to challenge the appellant on appeal.
For the foregoing reasons the application is allowed. The appellant shall file and serve his appeal within the next 14 days from the delivery of this ruling. Costs of this application to the respondent.
Dated, signed and delivered at Kisumu this 12th day of March, 2015.
H.K. CHEMITEI JUDGE