[2017] KEHC 6851 (KLR)
The court found that the applicant's failure to file the appeal within the prescribed time was occasioned by the delayed provision of the lower court proceedings, a systemic challenge not attributable to the applicant. The court held that litigants should not be penalized for delays outside their control....
Source-derived case information.
- Citation
- [2017] KEHC 6851 (KLR)
- Parties
- Applicant: China Road & Bridge Eng. Co. Ltd; Respondent: Anne Njoki Wainaina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 523 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application allowed with conditions
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
China Road & Bridge Eng. Co. Ltd
Applicant
Anne Njoki Wainaina
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the lower court judgment.
- 2 Whether a stay of execution should be granted pending the determination of the intended appeal.
- 3 Whether the delay in filing the appeal was excusable.
Ratio Decidendi
The court found that the applicant's failure to file the appeal within the prescribed time was occasioned by the delayed provision of the lower court proceedings, a systemic challenge not attributable to the applicant. The court held that litigants should not be penalized for delays outside their control. Consequently, the applicant made a sufficient case for the grant of leave to appeal out of time. The court further determined that a conditional stay of execution was appropriate to balance the interests of both parties, requiring partial payment to the respondent and deposit of the balance in a joint account pending appeal.
Court Disposition
application allowed with conditions
Orders
- Leave is granted to the applicant to file an appeal out of time within 30 days from the date of the ruling.
- There shall be a stay of execution of the lower court judgment on condition that the applicant pays the respondent Kshs. 500,000 out of the decretal sum and deposits the balance in an interest earning account in the names of both advocates within 30 days.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. APPLICATION NO. 523 OF 2016
CHINA ROAD & BRIDGE ENG. CO. LTD ….......……….APPLICANT
VERSUS
ANNE NJOKI WAINAINA …………………………….RESPONDENT
RULING
This is an application by way of Notice of Motion dated 7th October, 2016 under Sections 79G, 1A and 3A of the Civil Procedure Act and Order 50 Rule 6, Order 51 Rules 1 and 3 of the Civil Procedure Rules. It seeks substantive orders that the applicant be granted leave to file and serve appeal out of time arising from the Judgment of the lower court delivered on 28th July, 2016.
The other orders sought are that if that leave is granted, it should operate as a stay of execution pending the determination of the said appeal. The application is opposed by the respondent.
The grounds upon which the application is premised are that after the delivery of the Judgment the applicant through its advocates made an application for typed and certified copy of the judgment; however even as at the time of filing the application the said copies had not been received and time to file the appeal had expired. There is apprehension that the respondent may execute the decree.
There are other grounds that are set out which go to the root of the intended appeal and it is not prudent to address them at this stage. From the material placed before the court, the lower court judgment was based on a traffic accident that involved the applicant’s motor vehicle registration No. KBU 223 L which collided with motor cycle registration No. KMCN 018V which was being ridden by the deceased John Chege Wainaina.
The issues for determination in the lower court were therefore liability and quantum. The appellant was held liable to the extent of 90% while the deceased was held to have contributed to the accident at the rate of 10%. The issue of liability is the subject of appeal going by the draft memorandum of appeal on record. The other issue is on quantum leading to the award of Kshs. 1,726,549/=.
It is clear from the correspondence supplied by the appellant’s advocate that the failure to file the appeal in time was occasioned by delayed provision of the lower court proceedings. This is a systemic challenge within the institution and no litigants should be blamed for delay not within their control.
Considering all the material before me, I believe the applicant has made a good case to warrant the grant of the orders sought albeit conditionally. Accordingly, leave is hereby granted to file appeal out of time which has to be done within 30 days from today.
There shall be a stay of execution of the lower court judgment on condition that the applicant pays the respondent a sum of Kshs. 500,000/= out of the decretal sum and the balance be deposited in an interest earning account in the names of both advocates for the parties. This shall be complied with within 30 days from the date of this ruling. The costs herein shall be on appeal.
Dated, signed and delivered at Nairobi this 21st Day of March, 2017.
A. MBOGHOLI MSAGHA
JUDGE