[2008] KEHC 398 (KLR)
The court found that the appellant failed to comply with the order to provide security within the stipulated 21 days, resulting in the automatic lapse of the stay of execution. Although the appellant explained the initial difficulties in raising the funds, he did not provide a satisfactory explanation for the...
Source-derived case information.
- Citation
- [2008] KEHC 398 (KLR)
- Parties
- Appellant: Fred Nabanga t/a Amice Engineering Systems; Respondent: Stanley Were
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 175 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Application to Extend Time for Compliance With Stay of Execution Order
- Outcome
- application dismissed
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Extension of Time, Security for Decretal Amount
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fred Nabanga t/a Amice Engineering Systems
Appellant
Stanley Were
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Extend Time for Compliance With Stay of Execution Order
Legal Issues
- 1 Whether the court should enlarge and extend the time for the appellant to comply with the order for security for stay of execution.
- 2 Whether the delay in bringing the application for extension of time was reasonable and justified.
Ratio Decidendi
The court found that the appellant failed to comply with the order to provide security within the stipulated 21 days, resulting in the automatic lapse of the stay of execution. Although the appellant explained the initial difficulties in raising the funds, he did not provide a satisfactory explanation for the inordinate delay of over five months in bringing the application for extension. The court held that such a delay was unreasonable and that no just cause had been shown to warrant the exercise of its discretion in favour of the appellant. The application for extension of time was therefore dismissed.
Court Disposition
application dismissed
Orders
- The application dated 7th October, 2008 is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 175 of 2008
FRED NABANGIT/A AMICE ENGINEERING SYSTEMS……APPELLANT
VERSUS
STANLEY WERE…………..…..........................………………..RESPONDENT
R U L I N G
1. On the 24th April, 2008, this court issued an order for stay of execution pending appeal on the condition that the appellant, Fred Nabanga t/a Amice Engineering Systems, either deposits the sum of Kshs.500,000/= into an interest earning account in the joint names of the parties’ advocates or alternatively provides a guarantee from a financial institution for payment of the decretal amount. The court further ordered that the security be provided within 21 days of the date of that order and in default of the security being provided within the said period the order for stay of execution shall lapse.
2. By a notice of motion dated 7th October, 2008, the appellant has now moved this court under Section 95 of the Civil Procedure Act and Order XLIX Rule 5 of the Civil Procedure Rules seeking to have the time within which to comply with the orders issued by the court on 24th April, 2008 enlarged and extended.
3. The appellant explains that he has now raised the cash Kshs.500,000/= required as security and that his efforts to raise the money earlier were frustrated when his brother who had earlier offered to give him the money changed his mind and his wife efforts to raise the money from her employer were not successful because the company where she was working was undergoing rebranding.
4. The respondent Stanley Were, objects to the application contending that the orders issued by the court lapsed and the application subject of the orders is already spent. It was contended that no material had been laid before the court upon which the order sought can be granted.
5. I have considered the application, the affidavit in support and in reply. First, the orders of 24th April, 2008, were to expire after 21 days if the security was not deposited. The security not having been provided within the stated period, the orders of 24th April, 2008 lapsed. Although the applicant has explained the difficulties he encountered in raising the required security, the applicant has not explained the apparent inordinate delay in bringing this application as the application was brought over 5 months after the given period had expired. That is an unreasonably long delay. Moreover, the appellant maintains that the attached property does not belong to him. However, that is immaterial as there are appropriate procedures for objection proceedings.
6. The applicant has not shown any just cause as to why this court should exercise its discretion in his favour. His application dated 7th October, 2008 is accordingly dismissed.
Dated and delivered this 18th day of December, 2008
H. M. OKWENGU
JUDGE
In the presence of: -
Wati for the appellant/applicant
Advocate for the respondent absent