[2020] KEHC 4818 (KLR)
The court found that the applicants had satisfied the criteria for enlargement of time to file an appeal out of time, as set out in Salat v IEBC {2014} eKLR. The court also exercised its discretion under Order 42 Rule 6 to grant a stay of execution of the judgment decree, subject to the condition that the decretal...
Source-derived case information.
- Citation
- [2020] KEHC 4818 (KLR)
- Parties
- Applicant: Euthychus Muriuki Kangangi; Applicant: Enderson Mwangonde Mwagona; Respondent: Mohammed Ali Abdalla (Suing on their own behalf and as the administrators of the estate of the late Ali Mohamed Ali)
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 70 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- Application allowed with conditions.
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Enlargement of Time, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Euthychus Muriuki Kangangi
Applicant
Enderson Mwangonde Mwagona
Applicant
Mohammed Ali Abdalla (Suing on their own behalf and as the administrators of the estate of the late Ali Mohamed Ali)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicants have satisfied the criteria for enlargement of time to file an appeal out of time.
- 2 Whether the applicants are entitled to a stay of execution of the judgment decree pending appeal.
Ratio Decidendi
The court found that the applicants had satisfied the criteria for enlargement of time to file an appeal out of time, as set out in Salat v IEBC {2014} eKLR. The court also exercised its discretion under Order 42 Rule 6 to grant a stay of execution of the judgment decree, subject to the condition that the decretal sum be deposited in a joint interest-earning account of both counsels or, alternatively, a bank guarantee from a reputable financial institution be deposited with the Deputy Registrar within thirty days. The draft memorandum of appeal was deemed duly filed within time, and the appellants were to be supplied with the trial court record and judgment for purposes of preparing the...
Court Disposition
Application allowed with conditions.
Orders
- Leave is granted to file an appeal out of time against part of the judgment delivered on 27.1.2019.
- Stay of execution of the judgment decree in Civil Suit No. 5 of 2016 is granted pending the hearing and determination of the intended appeal, subject to deposit of Kshs.1,936,282 in a joint interest-earning account of both counsels within thirty days or provision of a bank guarantee from a reputable financial...
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
MISCELLANEOUS APPLICATION NO. 70 OF 2019
EUTHYCHUS MURIUKI KANGANGI ............................................1ST APPELLANT
ENDERSON MWANGONDE MWAGONA...................................... 2ND APPELLANT
VERSUS
MOHAMMED ALI ABDALLA (Suing on their own behalf and as the administrators
of the estate of the lateALI MOHAMED ALI) .......................................RESPONDENT
CORAM: Hon. Justice R. Nyakundi
Ms. Kairu & Mc Court Advocates for the Applicant
Ms. S. N. Ngare Advocates for the Respondent
RULING
This is an application by the appellants in which they seek two orders from this Court. First this Honourable Court be pleased to grant leave to file an appeal out of time against part of the Judgment delivered on 27. 1.2019 as per attached Memorandum of Appeal pursuant to Section 1A, 3, 3A, 79G and 95 of the Civil Procedure Act. Secondly, this Honourable Court be pleased to order stay of execution of the Judgment Decree in Civil Suit No. 5 of 2016 pending the hearing and determination of the intended appeal.
In support of the application are grounds on the face of the motion and an affidavit by Isabela Nyambura filed in Court on 11. 11. 2019. The respondent filed a notice of preliminary objection under Section 7 of the Civil Procedure Act. On consideration of the matter, I take the following view:
(1). On enlargement of time pursuant to the guiding principles in Salat v IEBC {2014} eKLR the applicants have satisfied the criteria for enlargement to file an appeal out of time.
(2). On stay of execution pursuant to Order 42 Rule 6, I exercise discretion to grant stay of execution pending the hearing and determination of an appeal on the following conditions:
(a). That the decretal sum of Kshs.1,936,282/= be deposited in a joint earning interest account of both counsels within thirty (30) days from today’s date or in the alternative a bank guarantee issued from the reputable financial institution be deposited with the Deputy Registrar within the same period.
(3). The draft Memorandum of appeal be deemed as duly filed within time.
(4). The appellants be supplied with the trial Court record and Judgment for purposes of preparing the record of appeal to be ready within the thirty (30) days period.
(5). Directions of the matter be and is hereby scheduled on 14. 7.2020
(6). The cases of the application to abide the outcome of an appeal.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 25TH DAY OF JUNE 2020
..............................
R. NYAKUNDI
JUDGE
This Ruling has been delivered in absence of the parties in terms of Article 48 and 159 of the Constitution and practice directions in Gazette Notice by the Chief Justice No. 3137 dated 17. 4.2020.