[2018] KEHC 818 (KLR)
The court found that the applicant had sufficiently explained the delay in filing the application, primarily due to the judgment being delivered without notice to the parties. The court accepted the applicant's apprehension regarding the respondent's ability to repay the decretal sum as a valid ground for...
Source-derived case information.
- Citation
- [2018] KEHC 818 (KLR)
- Parties
- Applicant: Brass and Allied Works Ltd; Respondent: Charles Ndegwa Wagura; Respondent: John Kanina; Respondent: Joseph Mukuna
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 218 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application allowed with conditions
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brass and Allied Works Ltd
Applicant
Charles Ndegwa Wagura
Respondent
John Kanina
Respondent
Joseph Mukuna
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has sufficiently explained the delay in filing the application for stay and leave to appeal out of time.
- 2 Whether the applicant is entitled to stay of execution pending appeal.
- 3 Whether sufficient security has been offered for the due performance of the decree.
Ratio Decidendi
The court found that the applicant had sufficiently explained the delay in filing the application, primarily due to the judgment being delivered without notice to the parties. The court accepted the applicant's apprehension regarding the respondent's ability to repay the decretal sum as a valid ground for substantial loss. The offer to deposit the entire decretal sum in an interest earning account in the joint names of both advocates was deemed adequate security. Consequently, the court allowed the application for stay of execution and granted leave to file the appeal out of time, subject to the condition that the decretal sum be deposited as proposed within 30 days.
Court Disposition
application allowed with conditions
Orders
- Application allowed in terms of prayers No. 3 and 4.
- Applicant to deposit the entire decretal sum in an interest earning account in the joint names of both advocates within 30 days.
Full Case Text
Judgment text and source record
18 paragraphs
REUBLIC OF KENYA
INTHE HIGH COURT OF KENYA
AT NAIROBI
MISC. APPLICATION 218 OF 2018
BRASS AND ALLIED WORKS LTD.................................APPLICANT
VERSUS
CHARLES NDEGWA WAGURA............................1ST RESPONDENT
JOHN KANINA.......................................................2ND RESPODNENT
JOSEPH MUKUNA.................................................3RD RESPONDENT
RULING
There is a judgment of the lower court in favour of the 1st respondent herein delivered on 8th November, 2018. The applicant herein was the defendant in the lower court. Following that judgment the applicant filed this application dated 4th April, 2018 for stay of execution and leave to file an appeal out of time. The applicant cited Sections 1A,1B,3B and 79G of the Civil Procedure Act and Order 50 of the Civil Procedure Rules. Reasons have been given on the face of the application alongside a supporting affidavit sworn by a director of the applicant.
The application is opposed and there is a replying affidavit sworn by the 1st respondent herein. Both parties have filed written submissions. I have looked at the provisions of law cited by the applicant, the submissions of both parties and the cited authorities. The delay in filing of the application has been sufficiently explained by the applicant.
The main reason is that the judgment was delivered in the absence of both parties without notice thereof. It has also been explained that there is apprehension the 1st respondent may not be in a position to repay the decretal sum if stay is not granted as it is alleged he may lack means to do so. That would amount to substantial loss.
The applicant is prepared to deposit the decretal sum in an interest earning account in the names of both counsel. That I believe is sufficient security required to ensure that any decree that may be passed against the applicant will be met if the appeal does not succeed. Any prejudice that may arise shall have been taken care of by that proposal.
Accordingly, I allow the application in terms of prayers No. 3 and 4 provided that the applicant shall cause the entire sum to be deposited in an interest earning account in the joint names of both advocates on record for the parties. Leave is also granted to lodge the appeal out of time. The deposit of the decretal sum and the filing of the record of appeal shall be effected within 30 days from the date of this ruling. The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 11th day of December, 2018.
A. MBOGHOLI MSAGHA
JUDGE