[2020] KEHC 9715 (KLR)
The court found that while the applicant's reasons for delay were not fully satisfactory, the interests of justice required balancing the competing interests of both parties. The court exercised its discretion to allow the extension of time and stay of execution, conditional upon the applicant depositing the...
Source-derived case information.
- Citation
- [2020] KEHC 9715 (KLR)
- Parties
- Applicant: David Wachira; Respondent: Josphine Kambua Katiwa & Festus Munyoki Katiwa (suing as the administrators of the estate of the late Mwaniki Katiwa)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 688 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time and Stay of Execution
- Outcome
- Application allowed with conditions.
- Judges
- BT Jaden
- Legal Topics
- Extension of Time, Stay of Execution, Appeals Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Wachira
Applicant
Josphine Kambua Katiwa & Festus Munyoki Katiwa (suing as the administrators of the estate of the late Mwaniki Katiwa)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time and Stay of Execution
Legal Issues
- 1 Whether the court should grant leave to file an appeal out of time against the judgment of the lower court.
- 2 Whether the court should grant a stay of execution of the lower court's judgment pending the intended appeal.
Ratio Decidendi
The court found that while the applicant's reasons for delay were not fully satisfactory, the interests of justice required balancing the competing interests of both parties. The court exercised its discretion to allow the extension of time and stay of execution, conditional upon the applicant depositing the decretal sum in a joint interest earning account or in court within 30 days. This approach ensures the respondent's interests are protected while preserving the applicant's right to appeal.
Court Disposition
Application allowed with conditions.
Orders
- Leave granted to the applicant to file a memorandum of appeal out of time.
- Stay of execution of the judgment and decree in Milimani Chief Magistrates Court Civil Suit No. 4433 of 2011 granted pending the intended appeal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL MISC APPL. NO. 688 OF 2019
DAVID WACHIRA..............................................................................APPLICANT
VERSUS
JOSPHINE KAMBUA KATIWA &FESTUS MUNYOKI KATIWA
(suing as the administrators
Of the estate of the late MWANIKI KATIWA)............................RESPONDENTS
RULING
1. The application dated 29th October, 2019 principally seeks orders that this honourable court be pleased to extend time and grant leave to the Applicant/Appellant to lodge a memorandum of appeal out of time against the judgment and decree entered against the Applicant by Honourable K.I. Orenge (Mr.) Senior Resident Magistrate, in Milimani Chief Magistrates Court Civil Suit No. 4433 of 2011 given on 30th May, 2019.
2. Secondly that this honourable court be pleased to stay execution of the judgment and decree in Milimani Chief Magistrates Court Civil Suit No. 4433 of 2011 pending hearing and determination of the intended appeal.
3. The lower court delivered judgment in favour of the Respondent on 30th May, 2019 for Ksh.2,150,000/= general damages. The Applicant is aggrieved by the said judgment and is desirous of filing an Appeal. The delay in filing the Appeal is attributed to the time taken to obtain instructions and obtaining an opinion in the matter. The Applicant is apprehensive that the Respondent will move to execute the judgment. It is further averred that the intended Appeal has high chances of success. The Applicant is willing to furnish security for the due performance of the decree.
4. In a replying affidavit filed in opposition to the application, it is stated that no justifiable reason for the inordinate delay and therefore the application ought to be dismissed.
5. I have considered the application and the response to the same. The Applicant has explained the reasons for the delay. The reasons do not fully satisfactorily explain the delay. However, to balance the competing interests of the parties, I allow the application on condition that the decretal sum is deposited in a joint interest earning bank account of the counsels for the respective parties or in court within 30 days from the date hereof.
Dated, signed and delivered in Nairobi this 29th day of May, 2020
B. THURANIRA JADEN
JUDGE