[2017] KEHC 4702 (KLR)
The court found that the applicants failed to provide any plausible or sufficient explanation for the delay in filing the appeal out of time. The only reason advanced was inadvertent mistake by their advocates, but no detailed or credible cause for the delay was presented. The court held that, in the absence of a...
Source-derived case information.
- Citation
- [2017] KEHC 4702 (KLR)
- Parties
- Applicant: Francis Kimani; Applicant: Melzedek Kenyatta; Applicant: James Omoke Amenta; Respondent: Mwenze Moki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 593 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Motion for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- motion dismissed with costs to the respondent
- Judges
- JK Sergon
- Legal Topics
- Extension of Time, Stay of Execution, Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Kimani
Applicant
Melzedek Kenyatta
Applicant
James Omoke Amenta
Applicant
Mwenze Moki
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Motion for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have provided sufficient reason for the delay in filing the appeal out of time.
- 2 Whether the court should grant a stay of execution pending appeal.
Ratio Decidendi
The court found that the applicants failed to provide any plausible or sufficient explanation for the delay in filing the appeal out of time. The only reason advanced was inadvertent mistake by their advocates, but no detailed or credible cause for the delay was presented. The court held that, in the absence of a satisfactory explanation, it could not exercise its discretion to extend time or grant a stay of execution. Consequently, the motion was found to be without merit and was dismissed with costs to the respondent.
Court Disposition
motion dismissed with costs to the respondent
Orders
- The motion dated 21/11/2016 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL MISC. APPL. NO. 593 OF 2016
FRANCIS KIMANI ............................. 1ST APPELLANT/APPLICANT
MELZEDEK KENYATTA ................... 2ND APPELLANT/APPLICANT
JAMES OMOKE AMENTA .............. 3RD APPELLANT/APPLICANT
-V E R S U S –
MWENZE MOKI.............................................................RESPONDENT
RULING
1. The appellants herein, namely Francis Kimani, Melzedek Kenyatta and James Omoke Amenta the 1st, 2nd and 3rd appellants took out the motion dated 21. 11. 2016 in which they sought for interalia:
i. An order for stay of execution pending appeal.
ii. An order for leave to file an appeal out of time against the decision of Hon. Obura learned principal Magistrate delivered on 14. 10. 2016 vide Nairobi C.M.C.C. no. 315 of 2015, Milimani Commercial Court.
iii. Costs of the motion.
2) The motion is supported by the affidavit of Maureem Andeje. When served, Mwenze Moko, the respondent herein, filed grounds of opposition to oppose the motion. When the motion came up for interpartes hearing, this court gave directions to have the motion disposed of by written submissions. At the time of writing this ruling, the respondent was the only party who had filed his written submissions.
3) I have considered the grounds stated on the face of the motion and the facts deponed in the affidavits filed in support and against the motion. I have also considered the written submissions. It is the submission of the appellants/applicants that they instructed the firm of M/s Kairu & MCourt to appeal against the judgement delivered vide Milimani C.M.C.C. no. 315 of 2015 on 14. 10. 2016 but due to an inadvertent mistake the aforesaid firm failed to do so within the statutory period. The respondent opposed the motion arguing that no good reasons have been given to explain why the appeal was not filed within time.
4) The main reason advanced in support of the motion is that, due to inadvertent mistake, the appeal was not filed within time. I have carefully considered the material placed before this court and there is no explanation as to the cause of the delay to enable this court exercise its discretion to extend time to appeal. Having failed to provide any plausible reason to convince this court to extend time and grant an order for stay, I find the motion dated 21/11/2016 to be without merit. The same is dismissed with costs to the respondent.
Dated, Signed and Delivered in open court this 9th day of June, 2017.
J. K. SERGON
JUDGE
In the presence of:
.................................. for the Appellant
................................... for the Respondent