Kenya Judgment

High Court · High Court at Nairobi (Milimani Commercial Courts)

E N K v J N K [2017] KEHC 5660 (KLR)

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Source document

01

Holding and result

The court found that the applicant had acted promptly by filing a notice of appeal and requesting proceedings shortly after the judgment. There was no undue delay in bringing the application. The court recognized the applicant's right to seek appellate review and determined that both leave to appeal and a stay of execution were justified in the circumstances. The orders were granted for a period of thirty days from the date of the ruling, with no order as to costs.

Court disposition

application allowed

Orders

  • Leave to appeal is granted for thirty (30) days from the date of this ruling.
  • Stay of execution of the judgment is granted for thirty (30) days from the date of this ruling.
  • There shall be no order as to costs.

02

Material facts

Parties

E N K

Plaintiff

J N K

Defendant

03

Procedural history

  1. Posture

    Civil Suit / Ruling on Application for Leave to Appeal and Stay of Execution

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant argued that they are aggrieved by the judgment delivered on 2nd October 2015 and have already filed a notice of appeal and requested for proceedings. They seek leave to appeal and a stay of execution to prevent prejudice pending the appeal process.
Respondent
The respondent opposed the application, filing an affidavit in opposition and written submissions contesting the grant of leave and stay, but the specific grounds of opposition are not detailed in the ruling.

05

Court’s reasoning

  1. 01

    General principle of appellate procedure

    A party aggrieved by an order of the court is entitled to seek a second opinion from an appellate court.

  2. 02

    Civil Procedure Rules, Kenya

    Applications for leave to appeal and stay of execution must be made without undue delay.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant had acted promptly by filing a notice of appeal and requesting proceedings shortly after the judgment. There was no undue delay in bringing the application. The court recognized the applicant's right to seek appellate review and determined that both leave to appeal and a stay of execution were justified in the circumstances. The orders were granted for a period of thirty days from the date of the ruling, with no order as to costs.

Obiter and limits

  • A party who is aggrieved of an order of this court is at liberty to get a second opinion from an appellate court.
  • The application before me is not being sought after considerable delay.

Court disposition

application allowed

  • Leave to appeal is granted for thirty (30) days from the date of this ruling.
  • Stay of execution of the judgment is granted for thirty (30) days from the date of this ruling.
  • There shall be no order as to costs.

Source and reliance status

High Court

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Judgment reading view

Judgment text

The complete available source text.

Source document

High Court

Judgment

[2017] KEHC 5660 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 11 OF 2007 (OS)

E N K…………………..…...............................…..….PLAINTIFF

VERSUS

J N K………….….……………...........................…DEFENDANT

RULING

1. The Motion dated 16th October 2015 seeks leave to appeal and stay of execution. The judgment proposed to be appealed against was delivered on 2nd October 2015. The application is opposed. The respondent has filed an affidavit in opposition.

2. The parties have filed detailed written submissions on their respective positions. I have read through both sets of written submissions and noted the arguments advanced in them, inclusive of the caselaw cited.

3. The record indicates that the applicant filed a notice of appeal on 13th October 2015 and also lodged a letter at the registry on 13th October 2015 asking for copies of the proceedings and judgment.

4. A party who is aggrieved of an order of this court is at liberty to get a second opinion from an appellate court. In any event, the application before me is not being sought after considerable delay.

5. I am inclined to allow the application dated 16th October 2015. Leave to appeal is hereby granted. It shall be for thirty (30) days from date hereof. There shall also be stay of execution of the said judgment. The stay shall equally be for thirty (30) days from date hereof. There shall be no order as to costs.

DATED, SIGNED and DELIVERED at NAIROBI this 12TH DAY OF MAY, 2017.

W. MUSYOKA

JUDGE

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Civil Procedure Rules, Kenya

Legislation

Legislation referenced in the available case record.

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