[2020] KECA 173 (KLR)
The Court of Appeal held that its jurisdiction to entertain an application for stay of execution under rule 5(2)(b) is only triggered once a notice of appeal has been filed. Since the applicants had not yet filed a notice of appeal and were seeking leave to do so out of time, the proper procedure was for the...
Source-derived case information.
- Citation
- [2020] KECA 173 (KLR)
- Parties
- Applicant: The County Government of Garissa; Applicant: The County Secretary Garissa County; Applicant: Chief Officer Finance & Economic Planning Garissa County; Respondent: Takaful Insurance of Africa Limited (Kenya)
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 170 of 2020
- Procedural Posture
- Stay Application / Application for Stay of Execution and Leave to File Notice of Appeal Out of Time
- Outcome
- Application to be placed before a single Judge for hearing of extension of time to file notice of appeal.
- Judges
- S ole Kantai
- Legal Topics
- Stay of Execution, Extension of Time, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The County Government of Garissa
Applicant
The County Secretary Garissa County
Applicant
Chief Officer Finance & Economic Planning Garissa County
Applicant
Takaful Insurance of Africa Limited (Kenya)
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution and Leave to File Notice of Appeal Out of Time
Legal Issues
- 1 Whether the applicants should be granted leave to file a notice of appeal out of time.
- 2 Whether the court should grant a stay of execution of the High Court ruling pending appeal.
Ratio Decidendi
The Court of Appeal held that its jurisdiction to entertain an application for stay of execution under rule 5(2)(b) is only triggered once a notice of appeal has been filed. Since the applicants had not yet filed a notice of appeal and were seeking leave to do so out of time, the proper procedure was for the application for extension of time to be heard first by a single Judge under rule 4. Only after such leave is granted and a notice of appeal is filed can the application for stay of execution be properly considered by the full court. Accordingly, the motion was directed to be placed before a single Judge for determination of the application for extension of time.
Court Disposition
Application to be placed before a single Judge for hearing of extension of time to file notice of appeal.
Orders
- The Motion is to be placed before a single Judge under rule 4 of the Court of Appeal Rules for hearing of the application for leave to extend time to file notice of appeal.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KIAGE, GATEMBU & KANTAI, JJ.A.)
CIVIL APPLICATION NO. 170 OF 2020
BETWEEN
THE COUNTY GOVERNMENT OF GARISSA ...................... 1STAPPLICANT
THE COUNTY SECRETARY GARISSA COUNTY.................2NDAPPLICANT
CHIEF OFFICER FINANCE & ECONOMIC
PLANNING GARISSA COUNTY ..............................................3RDAPPLICANT
AND
TAKAFUL INSURANCE OF AFRICA LIMITED (KENYA) ......RESPONDENT
(An application for stay of execution of the Ruling and Order of the High Court of Kenya at Garissa (Kariuki, J.) dated 12thFebruary, 2020in H.C.C.C. No. 8 of 2019)
*****************
RULING OF THE COURT
The Motion dated 25th June, 2020 is brought pursuant to rules 5(2) (b) and 42of therules of this Court. The main prayers are that the applicant be granted leave to file a notice of appeal out of time against the ruling and orders of the High Court of Kenya at Garissa given on 12th February, 2020 in Garissa H.C.C.C. No. 8 of 2019 and the other prayer is that we be pleased to issue an order of stay of execution of the said ruling.
We note that there is a Judgment by the High Court where a money decree was issued and, on the application by the applicant, a conditional stay of execution was granted.
An application for extension of time for the doing of any act by the Court is provided for under rule 4 of the rules of this Court. Such application is heard by a single Judge while an application for stay of execution is provided for under rule 5(2) (b) of the said rules, the latter is heard by the full court.
Our jurisdiction is triggered by a notice of appeal.
We note that, here, the applicant must first be heard on the application for leave to extend time to file a notice of appeal.
The proper order to make, which we hereby do, is that the Motion be placed before a single Judge under rule 4 of the rules of the Court for the application for leave to extend time to file notice of appeal to be heard.
Dated and delivered at Nairobi this 20thday of November, 2020.
P.O. KIAGE
…………………………/
JUDGE OF APPEAL
S. GATEMBU KAIRU, FCIArb
……………………………
JUDGE OF APPEAL
S. ole KANTAI
…………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR