[2024] KEHC 8791 (KLR)
The court found that the applicant's delay of 20 days in filing the appeal was not excessive and was adequately explained by the administrative difficulties in obtaining court proceedings from the small claims court, which is known to be understaffed. The court held that such a delay, under the circumstances, was...
Source-derived case information.
- Citation
- [2024] KEHC 8791 (KLR)
- Parties
- Applicant: Thomas Gikunga; Respondent: Madison Insurance Company Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E781 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- Leave to file appeal out of time granted; stay of execution denied; each party to bear own costs.
- Judges
- JN Mulwa
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Gikunga
Applicant
Madison Insurance Company Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time.
- 2 Whether there is a decree capable of being stayed to warrant an order for stay of execution.
- 3 Whether the delay in filing the appeal was sufficiently explained.
Ratio Decidendi
The court found that the applicant's delay of 20 days in filing the appeal was not excessive and was adequately explained by the administrative difficulties in obtaining court proceedings from the small claims court, which is known to be understaffed. The court held that such a delay, under the circumstances, was excusable. However, the court determined that there was no decree capable of being executed, as the judgment of the subordinate court only awarded costs and did not contain executable orders. Consequently, the court granted leave to file the appeal out of time but declined to grant a stay of execution. Each party was ordered to bear its own costs of the application.
Court Disposition
Leave to file appeal out of time granted; stay of execution denied; each party to bear own costs.
Orders
- Leave is granted to the applicant to file the appeal out of time.
- The Memorandum of Appeal shall be filed and exchanged within 7 days of this ruling.
Full Case Text
Judgment text and source record
23 paragraphs
Gikunga v Madison Insurance Company Ltd (Miscellaneous Application E781 of 2023) [2024] KEHC 8791 (KLR) (Civ) (15 July 2024) (Ruling)
Neutral citation: [2024] KEHC 8791 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Miscellaneous Application E781 of 2023
JN Mulwa, J
July 15, 2024
Between
Thomas Gikunga
Applicant
and
Madison Insurance Company Ltd
Respondent
Ruling
1. By the Motion dated 28/08/2023, the applicant seeks orders fora.Leave to file appeal out of time andb.To set aside and/or stay execution of the decree from the judgment of the subordinate court delivered on 7/07/2023 pending hearing and determination of the intended appeal.
2. In the supporting affidavit sworn by the Applicant’s Advocate Vivian Wanjiru on 28/08/2023, the reasons for the delay in not filing appeal within the statutory period have been explained.In opposing the motion, the Respondent’s Legal Officer Moses Barasa swore the Replying Affidavit on 30/10/2023.
3. I have considered the Supporting and Opposing Affidavits and the judgment of the trial court.The delay in filing the Appeal is 20 days. Further, I find no decree capable of being executed as the judgment subject of the intended appeal had no orders capable of being executed save for the award on costs.
4. The reasons stated by the applicant that it could not obtain the proceedings in good time is an administrative issue, but it is common knowledge that on the recent past to date, getting proceedings from the small claims court is not easy for lack of sufficient staff to undertake typing thereof. Twenty days are not in my view too long having been explained.
5. Cnequently, the applicant is granted leave to file his appeal out of time. The Memorandum of Appeal shall be filed and exchanged within 7 days of this ruling and the Record of Appeal to be filed within 60 days.
6. The prayer for stay of execution of the judgment is denied, there being no decree capable of being stayed.
7. The court finds it appropriate to order that each party bears its own costs of the application.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JULY, 2024. JANET MULWAJUDGE