[2021] KEHC 3663 (KLR)
The court found that the applicants had satisfied the requirements for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules, as failure to grant stay could render the intended appeal nugatory if leave to appeal out of time was granted. The court also considered the constitutional imperative to...
Source-derived case information.
- Citation
- [2021] KEHC 3663 (KLR)
- Parties
- Applicant: Daniel Mwathe Mwilu; Applicant: Florence Mule Mwathe; Respondent: Michael Ndunda Kilonzo
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E004 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application allowed with conditions
- Judges
- GMA Dulu
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Quantum of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Mwathe Mwilu
Applicant
Florence Mule Mwathe
Applicant
Michael Ndunda Kilonzo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants should be granted leave to appeal out of time.
- 2 Whether a stay of execution of judgment or decree should be granted pending appeal.
- 3 Whether the applicants have satisfied the requirements for stay under Order 42 Rule 6 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicants had satisfied the requirements for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules, as failure to grant stay could render the intended appeal nugatory if leave to appeal out of time was granted. The court also considered the constitutional imperative to facilitate access to justice and found the delay in seeking leave to appeal out of time to be less than six months and not inordinate. Accordingly, the court exercised its discretion to grant both leave to appeal out of time and a conditional stay of execution, requiring the applicants to pay part of the decretal amount as security.
Court Disposition
application allowed with conditions
Orders
- Leave to appeal out of time is granted. The appeal must be filed within 14 days from the date of the ruling, failing which the extension lapses.
- Stay of execution of judgment or decree is granted provided the applicants pay the respondent Kshs.400,000 within 20 days from the date of the ruling. In default, the stay lapses.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
HC. MISC. CIVIL APPLICATION NO. E004 OF 2021
DANIEL MWATHE MWILU..........................................................1ST APPLICANT
FLORENCE MULE MWATHE.....................................................2ND APPLICANT
VERSUS
MICHAEL NDUNDA KILONZO.....................................................RESPONDENT
RULING
1. Before me is an application by way of Notice of Motion dated 29th January 2021 filed by M/s Simiyu Opondo Kiranga advocates on behalf of the applicants Daniel Mwathe Mwilu and Florence Mule Mwathe.
2. It is an application filed under section 1A, 1B, 3A, 63(c) and (e) of the Civil Procedure Act (cap 21) and Order 42 Rule 6, and Order 50 Rule 6 of the Civil Procedure Rules, seeking stay of execution of judgment or decree pending hearing and determination of appeal, as well as leave to appeal out of time.
3. The application has grounds on the face of the Notice of Motion and is supported by the affidavit sworn on 24th January 2021 by Sospeter Opondo Aming’a advocate, in which it was deponed that a judgment awarding the respondent damages of Kshs.858,910/= had already been entered, and that the time allowed by law to file an appeal had already lapsed.
4. The application is opposed through an affidavit sworn by the respondent Michael Ndunda Kilonzo on 16th February 2020 in which it was deponed that before the application was filed, already the applicant’s advocate had via email communication indicated a willingness to pay the decretal amount and that it was a surprise that they were now saying that they intend to appeal out of time.
5. The application proceeded through filing written submissions. Both the applicant’s counsel and respondent’s counsel filed written submissions to the application. I have perused and considered the submissions filed.
6. From the facts disclosed to me in the application, the response of the respondent and submissions filed, it is evident that the intended appeal is only on quantum of damages.
7. Thus, with regard to the request for stay, I am of the view that the applicant has satisfied the requirements under Order 42 Rule 6 of the Civil Procedure Rules. If stay is not granted, the appeal could as well be rendered as nugatory, if leave to appeal out of time is granted. With regard to the request for leave to appeal out of time, in view of the wide latitude given on access to justice in our 2010 Constitution, I will not deny the same as the delay is for less than six months.
8. I thus allow the application and order as follows –
a) Leave to appeal out of time is hereby granted. The appeal will be filed within 14 days from today, otherwise the extension of time herein granted will automatically lapse.
b) Stay of execution of judgment or decree is granted provided the applicants pay the respondent part of the decretal amount; that is Kshs.400,000/= within 20 days from today. In default the stay herein granted will automatically lapse.
DELIVERED, SIGNED & DATED THIS 28TH DAY OF SEPTEMBER, 2021, IN OPEN COURT AT MAKUENI.
..............................
GEORGE DULU
JUDGE