[2022] KEHC 2667 (KLR)
The court found that the appellants had demonstrated sufficient cause for the delay in filing the appeal, citing their absence at the trial court, efforts to obtain necessary documents, and challenges with the Judiciary e-filing system. The respondent did not contest these averments. In the interests of justice, the...
Source-derived case information.
- Citation
- [2022] KEHC 2667 (KLR)
- Parties
- Appellant: Eagle Group International Limited; Appellant: Agbeko Eric; Appellant: Mensah Bafour Kyei; Respondent: Hadija Cheruto Hamisi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E723 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application for Extension of Time and Stay of Execution
- Outcome
- Application allowed.
- Judges
- JK Sergon
- Legal Topics
- Extension of Time, Stay of Execution, Appeals Process, Ex Parte Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eagle Group International Limited
Appellant
Agbeko Eric
Appellant
Mensah Bafour Kyei
Appellant
Hadija Cheruto Hamisi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Extension of Time and Stay of Execution
Legal Issues
- 1 Whether the appellants should be granted leave to file an appeal out of time.
- 2 Whether a stay of execution of the lower court's orders should be granted pending appeal.
Ratio Decidendi
The court found that the appellants had demonstrated sufficient cause for the delay in filing the appeal, citing their absence at the trial court, efforts to obtain necessary documents, and challenges with the Judiciary e-filing system. The respondent did not contest these averments. In the interests of justice, the court exercised its discretion to extend the time for filing the appeal by 10 days. Additionally, to preserve the subject matter of the appeal and prevent prejudice to the appellants, the court granted a stay of execution of the lower court's orders pending the hearing and determination of the appeal. Costs were ordered to abide the outcome of the appeal.
Court Disposition
Application allowed.
Orders
- Time to file an appeal out of time is extended by 10 days.
- An order for stay of execution of the orders issued on 16th September 2021 by the trial court is granted pending appeal.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. E723 OF 2021
EAGLE GROUP INTERNATIONAL LIMITED.......................................1ST APPELLANT
AGBEKO ERIC............................................................................................2ND APPELLANT
MENSAH BAFOUR KYEI...........................................................................3RD APPELLANT
-VERSUS-
HADIJA CHERUTO HAMISI.........................................................................RESPONDENT
RULING
1) The appellant herein took out the motion dated 2/11/2021 inwhich they sought for the following orders:
i. THAT this application be certified urgent, and service thereof be dispensed with in the first instance.
ii. THAT this honourable court be pleased to grant leave to extend time limited for filing of the memorandum of appeal herein.
iii. THAT the honourable court be pleased to issue a temporary stay of execution of the orders of the Chief Magistrates Court at Milimani Commercial Division in Civil Case no. 3637 of 2019 issued on 16th September 2021 pending the final hearing and determination of this application.
iv. THAT the honourable court be pleased to issue a temporary stay of execution of the orders of the Chief Magistrates Court at Milimani Commercial Division in Civil Case no. 3637 of 2019 issued on 16th September 2021 pending the hearing and determination of the appeal to this court
v. THAT corollary to the foregoing, the memorandum of appeal filed by the appellant be deemed as properly and duly filed thus part of the record.
vi. THAT the costs of this application abide the outcome of the intended appeal.
vii. THAT the honourable court be pleased to issue any other orders it m ay deem fit and just in the circumstances of the case.
2) The appellants filed the affidavit of Agbeko Eric in support of themotion. The application was served upon the respondent’s advocates but the same never attracted any response, therefore this court permitted the appellants/applicants to prosecute the same exparte
3) It is the submission of the appellants/applicants that their casebefore the trial court was closed in their absentia as well as their counsels. The applicants also aver that they made concerted efforts in vain to obtain typed proceedings and a certified copy of the ruling to enable them lodge their appeal. The appellants further aver that due to the Judiciary e filing challenges, they were unable to upload the memorandum of appeal hence the delay to file the appeal on time.
4) Having considered the grounds put forward in support of theapplication and having further taken into account the fact that the respondent did not controvert the appellants’ averments arguments, I find the motion to be with merits. The same is allowed thus giving rise to issuance of the following orders:
i. Time to file an appeal out of time is extended by 10 days.
ii. An order for stay of execution of the orders issued on 16th September 2021 by the trial court is granted pending appeal.
iii. Costs of the application to abide by the outcome of the appeal.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 4TH DAY OF FEBRUARY, 2022.
..........................
J. K. SERGON
JUDGE
In the presence of:
.....................................for the Appellant
...................................for the Respondent