[2019] KEHC 8167 (KLR)
The court found that, although the respondents argued the application was an abuse of process, the absence of a copy of attachment by the auctioneers in the record raised triable issues. Therefore, the court exercised its discretion to allow the application in terms of granting the appellant time to appeal out of...
Source-derived case information.
- Citation
- [2019] KEHC 8167 (KLR)
- Parties
- Appellant: Benson Nganga Ndirangu; Respondent: John Oscar Juma; Respondent: Samson Okall T/A Dasemy Auctioneers
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 4 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application for Extension of Time and Stay of Execution
- Outcome
- Application allowed in terms of extension of time to appeal and stay of execution for auctioneers’ costs. No order as to costs.
- Judges
- KW Kiarie
- Legal Topics
- Extension of Time to Appeal, Stay of Execution, Auctioneers Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Nganga Ndirangu
Appellant
John Oscar Juma
Respondent
Samson Okall T/A Dasemy Auctioneers
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Extension of Time and Stay of Execution
Legal Issues
- 1 Whether the appellant should be granted leave to appeal out of time.
- 2 Whether a stay of execution for auctioneers’ costs should be granted pending appeal.
Ratio Decidendi
The court found that, although the respondents argued the application was an abuse of process, the absence of a copy of attachment by the auctioneers in the record raised triable issues. Therefore, the court exercised its discretion to allow the application in terms of granting the appellant time to appeal out of time and staying execution for auctioneers’ costs, with no order as to costs. The court did not find sufficient reason to deny the application given the procedural gaps identified.
Court Disposition
Application allowed in terms of extension of time to appeal and stay of execution for auctioneers’ costs. No order as to costs.
Orders
- The appellant is granted time to appeal out of time.
- There is a stay of execution for auctioneers’ costs pending hearing of the appeal.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CIVIL APPEAL NO.4 OF 2018
BETWEEN
BENSON NGANGA NDIRANGU...........................................................APPELLANT
AND
JOHN OSCAR JUMA....................................................................1ST RESPONDENT
SAMSON OKALL:
T/A DASEMY AUCTIONEERS...........................2ND RESPONDENT/ITERESTED
RULING
1. The appellant applicant has moved the court by way of Notice of motion dated 10th July 2018 which is brought under Article 159 (2) of the Constitution of Kenya, sections 1, 1A, 1B, 3,3A and 79G of the Civil Procedure Act and order 42Rule 6 Civil Procedure Rules.
2. He is seeking the following orders:
a) That the application be certified urgent and heard ex parte in the first instance. (Spent)
b) That pending the determination of this application inter partes there be a temporary order of stay of execution. (spent)
c) The appellant be granted time to appeal out of time.
d) That pending the hearing of the appeal there be a stay of execution for auctioneers’ costs.
3. The application was opposed by the respondents who argued that it was an abuse of the court process.
4. If the only issue was who was to pay the auctioneers’ costs, I would have agreed with the contention by the respondents. However, on perusing the record, I find that I have no copy of attachment by Dasemy Auctioneers. This therefore raises triable issues. The application is therefore allowed in terms of prayers (c) and (d) with no orders as to costs.
DELIVEREDandSIGNEDatBUSIAthis29th day of April, 2019
KIARIE WAWERU KIARIE
JUDGE