[2020] KEHC 209 (KLR)
The court found that the applicants were not served with the mandatory 10 days' notice of delivery of judgment as required by law, and that the judgment was delivered in their absence. This constituted a plausible reason for the delay in filing the appeal. The court held that the applicants had demonstrated...
Source-derived case information.
- Citation
- [2020] KEHC 209 (KLR)
- Parties
- Applicant: Benard Ochieng Anyumba; Applicant: Esther C. Kenduiyo; Applicant: Johana K. Langat; Respondent: Nelly Cherono Towett
- Court
- High Court
- Court Station
- High Court at Bomet
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 7 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application allowed with conditions
- Judges
- AN Ongeri
- Legal Topics
- Extension of Time, Leave to Appeal, Service of Judgment Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Ochieng Anyumba
Applicant
Esther C. Kenduiyo
Applicant
Johana K. Langat
Applicant
Nelly Cherono Towett
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicants should be granted leave to appeal out of time.
- 2 Whether the applicants were properly served with notice of delivery of judgment.
- 3 Whether stay of execution should be granted pending appeal.
Ratio Decidendi
The court found that the applicants were not served with the mandatory 10 days' notice of delivery of judgment as required by law, and that the judgment was delivered in their absence. This constituted a plausible reason for the delay in filing the appeal. The court held that the applicants had demonstrated sufficient cause to warrant the extension of time to appeal. Consequently, the court granted leave to appeal out of time and stay of execution, subject to conditions including the filing of the intended appeal within 30 days and the deposit of half the decretal sum in a joint interest-earning account.
Court Disposition
application allowed with conditions
Orders
- Leave to appeal out of time is granted; the intended appeal must be filed within 30 days of the ruling date.
- Stay of execution is granted pending appeal, subject to conditions.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BOMET
MISCELLANEOUS CIVIL APPLICATION NO. 7 OF 2020
BENARD OCHIENG ANYUMBA................................1ST APPLICANT
ESTHER C. KENDUIYO...............................................2ND APPLICANT
JOHANA K. LANGAT...................................................3RD APPLICANT
VERSUS
NELLY CHERONO TOWETT.......................................RESPONDENT
RULING
1. The application in the BOMET MISC. Application No. 7, 8 and 9 of 2020 are seeking leave and extension of time to appeal out of time in SOTIK SRMCC No. 180, 181 and 182 of 2018 respectively.
2. The applications are based on the grounds on the face of it and supported by the Affidavit of Geoffrey Okello Wesonga, an Advocate in the firm of MOSE MOSE and Milimo Advocates who were on record for BRITAM GENERAL INSURANCE COMPANY (K) Ltd acting for the Respondents.
3. It is deposed in the supporting Affidavits which are divided in the three Applications that the Respondents were not notified of the delivery of Judgment and that the Respondents stampled upon the Judgments on 29/5/2020 and noted that they had been delivered on 23/4/2020.
4. The applicants are now seeking leave to appeal out of time.
5. The Respondents also filed identical Replying Affidavits opposing the Applications.
6. I have condemned the applications seeking leave to appeal out of time together with the Affidavits in support of the same and also the Replying Affidavits.
7. I find that it is not in dispute that the Judgment was delivered in the absence of the Applicants.
8. The Applicants were entitled to be served with a 10 days notice of delivery of Judgment since they were absent.
9. I find that there is a plausible reason why the Appeal was not filed within the stipulated time.
10. I accordingly grant stay of execution and leave to file the appeal of time on the following conditions:
(1) THAT the intended appeal be filed within 30 days of this date.
(2) THAT half the decretal sum be deposited in an interest earning account jointly held by the Advocates for both parties
(3) THAT the said account be opened within 30 days of this date.
(4) This rule bonds Misc. No. 7, 8 and 9 of 2020.
Delivered in the open court in Bomet this 1st day of July 2020.
Mr. Mugumya holding brief for Wesonga for the Applicants.
No appearance for the Respondent.
A. ONGERI
JUDGE
1/7/2020