[2017] KEHC 5363 (KLR)

[2017] KEHC 5363 (KLR)

The court found that while the applicant had a right to seek leave to appeal, the supporting affidavit was insufficient as it was sworn by counsel and not the applicant, and did not adequately explain the delay. Nevertheless, the court exercised its discretion to enlarge time for filing the appeal by fourteen days...

Source-derived case information.

Citation
[2017] KEHC 5363 (KLR)
Parties
Applicant: E M G; Respondent: G W M
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
5 May 2017
Case Number
Miscellaneous Application 54 of 2016
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Proceedings and Leave to Appeal Out of Time
Outcome
Leave to file appeal out of time granted; stay of proceedings declined at this stage.
Judges
DN Musyoka, MW Muigai
Legal Topics
Leave to Appeal Out of Time, Stay of Proceedings, Affidavit Evidence, Alimony Applications
Source Language
english
Civil Procedure Family and Children Leave to Appeal Out of Time Stay of Proceedings Affidavit Evidence Alimony Applications

Source-derived case record

Summary, issues, holding and outcome

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Parties

E M G

Applicant

G W M

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application for Stay of Proceedings and Leave to Appeal Out of Time

Legal Issues

  1. 1 Whether the applicant is entitled to leave to file an appeal out of time against the lower court's ruling delivered on 24th March 2016.
  2. 2 Whether the applicant is entitled to an order for stay of proceedings in Milimani CMCDC No. 32 of 2006 pending the intended appeal.
  3. 3 Whether the supporting affidavit by counsel, rather than the applicant, is sufficient to explain the delay.

Ratio Decidendi

The court found that while the applicant had a right to seek leave to appeal, the supporting affidavit was insufficient as it was sworn by counsel and not the applicant, and did not adequately explain the delay. Nevertheless, the court exercised its discretion to enlarge time for filing the appeal by fourteen days from the date of the ruling. The court declined to grant a stay of proceedings at this stage, noting that such an application should be made within the appeal itself once filed. The court also directed that the lower court file be returned to its registry. The decision was based on the absence of a pending appeal, the inadequacy of the explanation for delay, and the procedural...

Court Disposition

Leave to file appeal out of time granted; stay of proceedings declined at this stage.

Orders

  • Leave to file appeal in respect of the decision made on 24th March 2016 in Milimani CMCDC No. 32 of 2006 is enlarged by fourteen (14) days from the date hereof.
  • Stay of proceedings is to be sought within the appeal to be filed in accordance with the above order.