[2015] KEHC 1349 (KLR)
The court found that since the application was not opposed and the applicant had deposited the full decretal sum as security, it was in the interests of justice to grant both stay of execution and leave to file an appeal out of time. This would allow the applicant an opportunity to ventilate his grievances on appeal...
Source-derived case information.
- Citation
- [2015] KEHC 1349 (KLR)
- Parties
- Applicant: Daniel K. Gitau t/a Camp David Plaza; Respondent: Lucy Wangari Maina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 354 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay and Leave to Appeal Out of Time
- Outcome
- application granted
- Judges
- RE Aburili
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Extension of Time, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel K. Gitau t/a Camp David Plaza
Applicant
Lucy Wangari Maina
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted stay of execution of the decree pending appeal.
- 2 Whether the applicant should be granted leave to file an appeal out of time from the judgment and decree of the lower court.
Ratio Decidendi
The court found that since the application was not opposed and the applicant had deposited the full decretal sum as security, it was in the interests of justice to grant both stay of execution and leave to file an appeal out of time. This would allow the applicant an opportunity to ventilate his grievances on appeal while preserving the subject matter, ensuring that the intended appeal would not be rendered nugatory if successful. The court exercised its discretion in favour of the applicant, noting the absence of opposition and the fulfillment of conditions for stay.
Court Disposition
application granted
Orders
- Leave is granted to the applicant to file an appeal out of time from the judgment and decree of Thika CM CC 1037/2010 delivered on 3rd July 2015.
- The appeal shall be filed and served within 15 days from the date of this ruling.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION NO. 354 OF 2015
DANIEL K. GITAUT/A CAMP DAVID PLAZA …………………APPLICANT
VERSUS
LUCY WANGARI MAINA ………………….............……………RESPONDENT
COURT RULING
The application by the applicant amended on 26th August 2015 is not opposed. It seeks for stay of execution of decree in Thika CM CC 1037 of 2010 pending hearing and determination of this application and pending hearing and determination of the intending appeal.
The applicant also seeks leave of this court to be granted extending time within which an appeal ought to have been filed from the judgment and decree of the lower court passed on 3rd July, 2015.
The applicant relies on the supporting affidavit sworn by Daniel K. Gitau sworn on 11th August 2015.
On 12th August 2015 Honourable Onyancha J granted interim stay conditional upon the whole decretal sum being deposited on court.
The said sums have since been deposited on court vide receipt No. 0363093. The amount is 1,130,000/-.
For reasons that the application is not opposed, I have no reason why the same cannot be granted to serve the interests of justice and accord the applicant can opportunity to ventilate his grievances on appeal, while preserving the subject matter of the appeal so that should the intended appeal be successful, it shall not be rendered nugatory.
Accordingly, I grant the applicant leave to file an appeal out of time from the judgment and decree of Thika CM CC 1037/2010 delivered on 3rd July 2015. The said appeal shall be filed and served within 15 days from the date hereof.
I further grant stay of execution of decree in the same suit until the said appeal if filed is heard and determined.
Costs of this application shall be in the intended appeal.
Orders accordingly.
R.E. ABURILI
JUDGE
14/10/2015