[2023] KEHC 18350 (KLR)
The court found that the applicant acted promptly upon learning of the judgment, having not received notice of its delivery. The absence of notice constituted sufficient cause for the delay in filing the appeal. The court exercised its discretion in favour of the applicant, granting both the stay of execution and...
Source-derived case information.
- Citation
- [2023] KEHC 18350 (KLR)
- Parties
- Applicant: Amuhaya Diana Barasa; Respondent: Peter Simbi Oyengo
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 67 of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal
- Outcome
- application allowed
- Judges
- WM Musyoka
- Legal Topics
- Stay of Execution, Leave to Appeal, Judgment Notice, Appeal Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amuhaya Diana Barasa
Applicant
Peter Simbi Oyengo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment delivered in Kakamega CMCCC No. E29 of 2021.
- 2 Whether the applicant should be granted leave to appeal out of time due to lack of notice of judgment delivery.
Ratio Decidendi
The court found that the applicant acted promptly upon learning of the judgment, having not received notice of its delivery. The absence of notice constituted sufficient cause for the delay in filing the appeal. The court exercised its discretion in favour of the applicant, granting both the stay of execution and leave to appeal, subject to the appeal being filed within 30 days, failing which the stay would lapse.
Court Disposition
application allowed
Orders
- The application dated August 2, 2022 is allowed.
- Stay of execution of the judgment in Kakamega CMCCC No. E29 of 2021 is granted.
Full Case Text
Judgment text and source record
18 paragraphs
Barasa v Oyengo (Miscellaneous Application 67 of 2022) [2023] KEHC 18350 (KLR) (2 June 2023) (Ruling)
Neutral citation: [2023] KEHC 18350 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Application 67 of 2022
WM Musyoka, J
June 2, 2023
Between
Amuhaya Diana Barasa
Applicant
and
Peter Simbi Oyengo
Respondent
Ruling
1. The Motion, dated August 2, 2022, is for stay of execution and leave to appeal the judgment, delivered in Kakamega CMCCC No. E29 of 2021, on June 14, 2022.
2. The applicant complains that he had no notice of the delivery of the judgment, hence he did not attend court on June 14, 2022, when it was delivered. He only came to learn of it on July 5, 2022, when a bill of costs was served, and he obtained a copy of the judgment on July 18, 2022, and he instructed his Advocates to appeal on July 19, 2022, hence the instant application.
3. The applicant has moved quite promptly to stay execution and to seek leave to appeal. Discretion can quite properly be exercised in his favour. I, accordingly, allow the application, dated August 2, 2022. The appeal shall be filed within 30 days, in default the stay order shall lapse.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THI 2ND DAY OF JUNE 2023W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.AppearancesMs. Miheso, instructed by LG Menezes & Company, Advocates for the applicant.Mr. Abok, instructed by Abok Odhiambo & Company, Advocates for the respondent.