[2018] KEHC 6269 (KLR)
The court found that the applicants became aware of the judgment only on 8th February, 2017 and filed their application for stay and leave to appeal out of time within 9 days, which was considered prompt. The draft memorandum of appeal was found to raise arguable issues, indicating that the appeal was not frivolous....
Source-derived case information.
- Citation
- [2018] KEHC 6269 (KLR)
- Parties
- Appellant: Githuku Nancy; Appellant: Daniel Kinyua Gak; Respondent: Lilian Mwikali Mbaluka (as administrator of the Estate of the late Eric Ndambuki); Respondent: Kennedy James Ndambuki (as administrator of the Estate of the late Eric Ndambuki)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 72 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Application allowed with conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Discretion of Court, Security for Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Githuku Nancy
Appellant
Daniel Kinyua Gak
Appellant
Lilian Mwikali Mbaluka (as administrator of the Estate of the late Eric Ndambuki)
Respondent
Kennedy James Ndambuki (as administrator of the Estate of the late Eric Ndambuki)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants should be granted leave to appeal out of time.
- 2 Whether a stay of execution should be granted pending appeal.
- 3 Whether the applicants have demonstrated sufficient cause for the exercise of the court's discretion.
Ratio Decidendi
The court found that the applicants became aware of the judgment only on 8th February, 2017 and filed their application for stay and leave to appeal out of time within 9 days, which was considered prompt. The draft memorandum of appeal was found to raise arguable issues, indicating that the appeal was not frivolous. The court held that the applicants had demonstrated sufficient cause for the exercise of its discretion to grant both leave to appeal out of time and stay of execution. However, the stay was conditional upon the applicants paying part of the decretal sum to the respondents and depositing the balance in a joint interest-earning account. The court balanced the right of appeal...
Court Disposition
Application allowed with conditions.
Orders
- Leave to appeal out of time is granted; applicants to file appeal within 30 days.
- Stay of execution is granted provided applicants pay KES 2,000,000 to respondents and deposit the balance of the decretal sum in an interest-earning account in the joint names of the advocates within 30 days.
Full Case Text
Judgment text and source record
22 paragraphs
THE REPUBLIC OF KENYA
INTHE HIGH COURT OF KENYA AT NAIROBI
MISC APPLICATION NO. 72 OF 2017
GITHUKU NANCY...........................1ST INTENDED APPELLANT
DANIEL KINYUA GAK...................2ND INTENDED APPELLANT
VERSUS
LILIAN MWIKALI MBALUKA
(Sued as administrator of the Estate of
the late Eric Ndambuki (Deceased)...............1ST RESPONDENT
KENNEDY JAMES NDAMBUKI
(sued as administrator of the estate of
the late Eric Ndambuki (deceased)................2ND RESPONDENT
RULING
The applicants were defendants in the lower court where the respondents were the plaintiffs. There is a judgment in favour of the respondents in the sum of Kshs. 5,014,212. 80/=. The applicants were aggrieved by that judgment and have moved the court by way of Notice of Motion under Sections 3A, 79G and 95 of the Civil Procedure Act, Order 22 Rule 22, Order 42 Rule 6, Order 50 Rule 6 and Order 51 Rules 1 and 3 of the Civil Procedure Rules seeking a stay of execution pending the hearing and determination of the appeal and leave to appeal the decision of the lower court out of time.
There is a supporting affidavit sworn by the assistant manager of the insurance company that covered the motor vehicle involved in the accident that led to that claim. This is in addition to the grounds set out on the face of the application. The application is opposed and both counsel have field submissions and cited several authorities which I have considered. Which I have considered.
The averment by the applicants that the judgment was delivered in their absence or that of their advocates has not been seriously controverted. The first time knowledge of the judgment reached the advocate was on 8th February, 2017. The application at hand was filed on 17th February, 2017 which is just about 9 days thereafter. The application was therefore filed timeously.
I have looked at the draft Memorandum of Appeal. There is some substance therein and therefore it is an arguable appeal. Other than demonstrating substantial loss may result if stay is not allowed, the applicants are supposed to address the issue of security in the event any decree may be entered against them. The orders sought are discretionary and the applicants have to persuade the court to extend that discretion in their favour.
The applicants have the right of appeal. At the same time the respondents have a judgment in their favour which they desire to execute so as to enjoy the fruits thereof. In balancing the interests of both parties, I am persuaded to exercise discretion in favour of the applicants and extent time to file the appeal by 30 days.
There shall be a stay of execution provided that the applicants pay the respondents a sum of Kshs. 2,000,000/= and deposit the balance of the decretal sum in an interest earning account in the joint names of the advocates on record within 30 days from the date of this ruling. The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 17th day of May, 2018.
A. MBOGHOLI MSAGHA
JUDGE