[2012] KEHC 5073 (KLR)
The court found that the delay in filing the appeal was satisfactorily explained by the existence of stay orders in Nairobi High Court Petition No. 231 of 2010, which affected all cases involving Directline Assurance Co. Ltd, including the present matter. The application for leave to appeal out of time was filed...
Source-derived case information.
- Citation
- [2012] KEHC 5073 (KLR)
- Parties
- Respondent: Dorcas Wayua Musyoka; Appellant: David Mutua; Appellant: Mbuthi Samuel
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 69 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application allowed
- Judges
- GMA Dulu
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Explanation of Delay, Security for Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dorcas Wayua Musyoka
Respondent
David Mutua
Appellant
Mbuthi Samuel
Appellant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the delay in filing the appeal out of time was adequately explained.
- 2 Whether the applicants are entitled to stay of execution pending appeal.
- 3 Whether the deposit of Kshs.365,000 provides adequate security for the appeal.
Ratio Decidendi
The court found that the delay in filing the appeal was satisfactorily explained by the existence of stay orders in Nairobi High Court Petition No. 231 of 2010, which affected all cases involving Directline Assurance Co. Ltd, including the present matter. The application for leave to appeal out of time was filed promptly after the stay orders were vacated. The court held that there was no inordinate delay. Further, the court determined that the deposit of Kshs.365,000 in court constituted adequate security for the appeal, and thus, the applicants were entitled to a stay of execution pending appeal. The court therefore granted leave to appeal out of time and ordered that the stay of...
Court Disposition
application allowed
Orders
- Leave to appeal out of time is granted; appeal to be filed within 14 days.
- Stay of execution granted provided Kshs.365,000 remains deposited in court until determination of the appeal.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL MISC. APPLICATION NO. 69 OF 2011
DORCAS WAYUA MUSYOKA ……………………………PLAINTIFF/ RESPONDENT
VERSUS
1. DAVID MUTUA
2. MBUTHI SAMUEL ………...........…… DEFENDANTS/ INTENDED APPELLANTS
R U L I N G
Before me is an application by way of Notice of Motion dated 24th March 2011 filed by the Defendants, intended Appellants. It seeks leave to file appeal out of time from the decision in Machakos CMCC No. 1142 of 2009 delivered on 17th June 2010. It also seeks stay of execution of the judgment and decree pending hearing and determination of the appeal.
The application is opposed by the Plaintiff on the ground that there was inordinate delay in filing the application for leave to appeal out of time, that is, 10 months. On stay, the Plaintiff opposes the request on the ground that the Defendants will not suffer substantial loss, if the stay is not granted.
I observe that the Defendants were granted stay of execution pending hearing of this application, on condition that they deposit Kshs.365,000/= in court.
I have considered the application. I have also perused the draft memorandum of appeal.
In my view, the Defendants have explained the delay in filing appeal – See HENRY MBIJIWE –VS ERASTUS NZIOKA KILAKA – Machakos H.C. Misc. Appl. No. 158 of 2009 cited by the Plaintiff/Respondent. The delay in filing an appeal was caused by stay orders issued by the court on 25th June 2010 in Nairobi High Court Petition No. 231 of 2010. Those orders affected all cases in which Directline Assurance Co. Ltd were the insurers. The present matter was one of them. This application for leave to appeal out of time was filed on 25/03/2011 after the said stay orders were vacated on 1st March 2011. I find no inordinate delay in bringing the present application, as the delay has been adequately explained.
I find no reason to depart from the initial decision of this court for deposit into court of Kshs.365,000/=. In my view, the said cash deposit provides adequate security for the appeal, in favour of the winning party.
I therefore allow the application and order as follows:-
1. I grant prayer 3 of the application. The appeal will be filed in the next 14 days.
2. I grant prayer 4 of the application, provided the Defendants deposit into court Kshs.365,000/=. This means that the amount already deposited in court as previously ordered will remain so deposited till determination of the appeal. If the appeal is not filed within 14 days, the stay order herein will automatically lapse.
3. Costs of the application in the cause.
Dated and delivered at Machakos this 12thday of March2012.
George Dulu
Judge
In presence of:-
Mr Langat for the Defendants/Intended Appellants
Mr A.K. Mutua for the Plaintiff/Respondent
Nyalo – Court clerk