[2019] KEHC 6858 (KLR)
The court found that the applicant had sufficiently explained the delay in filing the appeal and the application, and that there was an arguable appeal based on the draft Memorandum of Appeal. The court held that if the lower court judgment was executed and the respondent was unable to refund the decretal sum, the...
Source-derived case information.
- Citation
- [2019] KEHC 6858 (KLR)
- Parties
- Applicant: Elvis Kiprop Mutai; Respondent: Benard Kibera Gacholi (Suing as the Administrator and legal representative of the estate of Andrew Gacholi Kibeba (Deceased))
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 491 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application allowed with conditions
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elvis Kiprop Mutai
Applicant
Benard Kibera Gacholi (Suing as the Administrator and legal representative of the estate of Andrew Gacholi Kibeba (Deceased))
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted a stay of execution of the lower court judgment pending appeal.
- 2 Whether the applicant should be granted leave to file an appeal out of time.
Ratio Decidendi
The court found that the applicant had sufficiently explained the delay in filing the appeal and the application, and that there was an arguable appeal based on the draft Memorandum of Appeal. The court held that if the lower court judgment was executed and the respondent was unable to refund the decretal sum, the applicant would suffer substantial loss. The applicant's offer to deposit the entire decretal sum as security was considered adequate. In the interest of justice, the court exercised its discretion to grant a stay of execution on condition that the decretal sum is deposited in an interest earning account in the names of both advocates. Leave to file the appeal out of time was...
Court Disposition
application allowed with conditions
Orders
- Stay of execution of the lower court judgment granted, provided the applicant deposits the entire decretal sum in an interest earning account in the names of both advocates.
- Leave to file the appeal out of time is granted.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC .CIVIL APPLICATION NO. 491 OF 2018
ELVIS KIPROP MUTAI...................................................................................APPLICANT
VERSUS
BENARD KIBERA GACHOLI (Suing as the Administrator and legal representative of
the estate of ANDREW GACHOLI KIBEBA (DECEASED)....................RESPONDENT
RULING
This is an application by way of Notice of Motion dated 22nd September, 2018 for orders that there be a stay of execution of the lower court judgment delivered on 16th August, 2018. There is also a prayer for leave to appeal out of time against the said judgment. The application is under Sections 1 A, 1B,3A,63 (e), 79G and 95 of the Civil Procedure Act, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules.
The grounds relied upon have been set out on the face of the application which is also supported by an affidavit sworn by the advocate for the applicant. There is a draft Memorandum of Appeal annexed to the application. The application is opposed and there is a replying affidavit sworn by the respondent. A supplementary affidavit followed sworn by the advocate for the applicant and there are submissions by both parties which I have considered.
The applicant has a right of appeal while the respondent has a judgment which he desires to execute and enjoy the fruits thereof. Order 47 Rule 6 is instructive. The application was filed on 25th September, 2018 which was a few days after the expiry of the time allowed to file an appeal. The delay in filing the appeal and the application has been sufficiently explained in grounds 1 and 2 of the application and reinforced by the supporting affidavit.
I have looked at the reasons advanced in opposing the application. I have also perused the draft Memorandum of Appeal which has been filed alongside the application. There appears to be an arguable appeal in the circumstances. If the lower court judgment is executed, substantial loss may result in the event the respondent is unable to refund the said sum. The applicant has offered security in the form of depositing the entire sum in court or an interest earning account.
I am persuaded that in the interest of justice this application should be allowed. There shall be a stay of execution provided the applicant deposits the entire decretal sum in an interest earning account in the names of both advocates appearing for the parties. Leave to file the appeal out of time is also allowed. The deposit of the decretal sum and the filing of the appeal shall be effected within 30 days from the date of this ruling. The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 10th Day of April, 2019.
A.MBOGHOLI MSAGHA
JUDGE