[2017] KEHC 1230 (KLR)
The court found that although the applicant had provided a satisfactory explanation for the delay in filing the appeal, the conduct of the applicant—specifically, entering into a consent on costs and requesting the respondent's bank account details for settlement—demonstrated acquiescence to the lower court's...
Source-derived case information.
- Citation
- [2017] KEHC 1230 (KLR)
- Parties
- Applicant: Fidelity Shield Insurance Co.; Respondent: Jane Wairimu Kiruru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 241 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Application for stay of execution dismissed; leave to appeal out of time granted.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fidelity Shield Insurance Co.
Applicant
Jane Wairimu Kiruru
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 is entitled to a stay of execution of the lower court decree pending appeal.
- 2 Whether the applicant should be granted leave to file an appeal out of time.
Ratio Decidendi
The court found that although the applicant had provided a satisfactory explanation for the delay in filing the appeal, the conduct of the applicant—specifically, entering into a consent on costs and requesting the respondent's bank account details for settlement—demonstrated acquiescence to the lower court's judgment. This conduct was inconsistent with seeking a stay of execution. Consequently, the court declined to grant a stay of execution but exercised its discretion to allow the applicant to file an appeal out of time, granting an extension of 30 days for this purpose. The costs of the application were ordered to abide the outcome of the appeal.
Court Disposition
Application for stay of execution dismissed; leave to appeal out of time granted.
Orders
- Stay of execution is declined.
- Applicant is granted an extension of 30 days to file the appeal.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC NO. 241 OF 2017
FIDELITY SHIELD INSURANCE CO........................APPLICANT
VERSUS
JANE WAIRIMU KIRURU....................................RESPONDENT
RULING
The lower court gave judgment in favour of the respondent herein which aggrieved the applicant leading to the present application. This is an application by way of Notice of Motion seeking orders of stay of execution of the lower court decree and leave to file appeal out of time. The grounds upon which the application has been made have been set out on the face of the application alongside a supporting affidavit sworn by the senior legal officer of the applicant. The application is opposed and there is a replying affidavit sworn by the advocate for the respondent. Both counsel agreed that the determination shall be based on the affidavits on record.
The Judgment of the lower court was delivered on 28th April, 2017 and this application was filed on 19th June, 2017, a delay of one and half months. The delay has been explained by the applicant to the satisfaction of the court. The applicant is ready to comply with any conditions that may be set by the court including the deposit of security.
After the said judgment of the lower court, advocates for the parties entered into a consent relating to costs, and a letter dated 2nd June, 2017 was addressed to the Chief Magistrate in that regard. On the same date, the advocate for the applicant wrote to the advocate for the respondent referring to the conversation the two had. It is important to set out the contents of the said letter in full. It reads as follows,
“RE: NAIROBI (MILIMANI) CMCC NO. 2348 OF 2016
JANE WAIRIMU KIRURU
VS
FIDELITY SHIELD INSURANCE CO. LTD
The above matters and the telephone conversation between your Mr. Kaburu and Our Mr. Denis Onyinkwa of the 2/6/2017 instance refer.
Kindly find enclosed three sets of consent letters in triplicate for your kind signature.
Kindly let us have the signed copies to enable us call for the settlement cheque
Meanwhile kindly let us have your client account details to enable the settlement of the decretal dues herein.
Yours faithfull,
ONYINKWA & CO.
ADVCOATES.”
On 7th June, 2017 the respondent’s advocate wrote to the applicant’s advocate giving details of the bank account as requested.
The filing of this application is a complete about turn by the applicant. I say so because the above cited correspondence alongside steps taken thereafter, clearly show a litigant that had submitted to the decision of the court. The draft memorandum of appeal on record may as well present an arguable appeal. On the other hand the respondent holds a judgment in her favour and in the circumstances, a legitimate expectation to enjoy the fruits of that judgment.
Taking into consideration the contents of the application and the reply thereto, I decline to grant any stay sought by the applicant. However, the applicant may go ahead and lodge the appeal and in that case it is hereby given an extension of 30 days to do so. The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 7th Day of December, 2017
A. MBOGHOLI MSAGHA
JUDGE