[2017] KEHC 3936 (KLR)
The court found that the delay of two months in filing the application to appeal out of time was not inordinate given the circumstances. The applicant demonstrated sufficient cause for the delay, and the right of appeal should not be unduly denied. The court also recognized the need to balance the applicant's right...
Source-derived case information.
- Citation
- [2017] KEHC 3936 (KLR)
- Parties
- Applicant: George Njenga; Respondent: Samuel Muomga Kioge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 550 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Enlarge Time and Stay Execution
- Outcome
- application allowed with conditions
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Extension of Time, Stay of Execution, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Njenga
Applicant
Samuel Muomga Kioge
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Enlarge Time and Stay Execution
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file an appeal out of time.
- 2 Whether a stay of execution of the lower court judgment should be granted pending appeal.
Ratio Decidendi
The court found that the delay of two months in filing the application to appeal out of time was not inordinate given the circumstances. The applicant demonstrated sufficient cause for the delay, and the right of appeal should not be unduly denied. The court also recognized the need to balance the applicant's right to appeal with the respondent's right to enjoy the fruits of the judgment. Accordingly, the court exercised its discretion to enlarge the time for filing the appeal and granted a conditional stay of execution, requiring the applicant to pay part of the decretal sum and provide a bank guarantee for the balance within a specified period.
Court Disposition
application allowed with conditions
Orders
- Time to lodge appeal is enlarged; applicant to file appeal within 30 days.
- Stay of execution of lower court judgment granted, conditional on applicant paying respondent KES 200,000 and providing a bank guarantee for the balance within 30 days.
Full Case Text
Judgment text and source record
18 paragraphs
REPBULIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC APPLICATION NO. 550 OF 2016
GEORGE NJENGA ……………….……………… APPLICANT
VERSUS
SAMUEL MUOMGA KIOGE …...………………RESPONDENT
RULING
In this application the applicant seeks an order to enlarge time for lodging an appeal following a judgment of the lower court delivered on 12th August, 2016. If that prayer is granted, the applicant prays that he be allowed to lodge an appeal out of time. There is also a prayer for a stay of execution of the said judgment.
The lower court proceedings related to a road traffic accident. After the hearing, the lower court made a finding that the applicant was liable to the respondent to the extent of 80% while the respondent was 20% to blame. The court proceeded to award Kshs. 600,000/= general damages plus Kshs. 2,500/= special damages, the total of which was subjected to 20% contributory negligence leaving a balance of Kshs. 479,500/=.
The applicant was aggrieved by the said judgment but instructions to lodge an appeal were delayed leading to the prayers set out in this application. The application is supported by an affidavit sworn by the legal officer of the applicant in addition to the grounds set out on the face of the application.
The application is opposed and there is a replying affidavit sworn by the respondent. Both counsel have filed written submissions. Several authorities have been cited which the court has appreciated. From the draft memorandum of appeal annexed to the application, the lower court has been faulted for awarding general damages which were too high in relating to injuries sustained by the respondent. Further that the court did not analyse the law and evidence on record. The court also faulted for ignoring the applicant’s submissions.
I have related the application to the cited provisions of law and also considered that the order sought may be granted by the exercise of the courts discretion. The judgment was delivered on 12th August, 2016 and this application filed on 18th October, 2016. The delay of 2 months is not inordinate in the circumstances of the case.
The respondent has a judgment in his favour and all things being equal, he should not be denied the fruits of his judgment. At the same time, the applicant has the right of appeal which should also not be denied. I have balanced the interests of both parties, and come to conclusion that the application should be allowed on the following terms.
The time to lodge appeal is enlarged and the applicant allowed to file the appeal within 30 days from today. There shall be a stay of execution of the lower court judgment provided that the applicant pays the respondent a sum of Kshs. 200,000/= and also provide a bank guarantee for the balance within 30 days from today. The costs shall abide by the decision of the appeal.
Dated, signed and delivered at Nairobi this 27th Day of July, 2017
A. MBOGHOLI MSAGHA
JUDGE