[2018] KEHC 7830 (KLR)
The court found that the reasons advanced by the applicant for the delay, specifically the technological hitch regarding the non-receipt of an instructing email, were sufficient to justify the extension of time to file an appeal. The court exercised its discretion to allow the application for leave to appeal out of...
Source-derived case information.
- Citation
- [2018] KEHC 7830 (KLR)
- Parties
- Respondent: Hadija Mohammed; Applicant: Peter Mungai Chege
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 21 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application allowed in part
- Judges
- A Ali-Aroni
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Extension of Time, Decree Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hadija Mohammed
Respondent
Peter Mungai Chege
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for extension of time to file an appeal out of time.
- 2 Whether a stay of execution of the decree should be granted pending the intended appeal.
Ratio Decidendi
The court found that the reasons advanced by the applicant for the delay, specifically the technological hitch regarding the non-receipt of an instructing email, were sufficient to justify the extension of time to file an appeal. The court exercised its discretion to allow the application for leave to appeal out of time, subject to the condition that the entire decretal amount be deposited in court within 14 days. The court thereby balanced the interests of both parties by ensuring the respondent's interests were secured through the deposit, while not shutting out the applicant from the appellate process due to a procedural lapse attributed to a technological issue.
Court Disposition
application allowed in part
Orders
- Leave to appeal out of time is granted; the appeal must be filed within 14 days.
- A stay of execution is granted subject to the entire decretal amount being deposited in court within 14 days.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISC. CIVIL APPLICATION NO.21 OF 2017
HADIJA MOHAMMED..............................RESPONDENT
VERSUS
PETER MUNGAI CHEGE.............................APPLICANT
RULING
1. The application before Court is brought pursuant to Order 42 rule 6 and Order 50 Rule 6 of the Civil Procedure rules 2010 and Sections 3A and 79(g) of the Civil Procedure Act.
2. The applicant is seeking for a stay of execution of the decree in Webuye SPMCC No.184 of 2009 Hadija Mohamed Vs Peter Mungai Chegepending hearing and determination of the intended appeal and for leave to appeal out of time.
3. The delay is attributed to a technological hitch; that an email sent to Counsel by the instructing client was not received.
4. The application was opposed by way of a replying affidavit stating that the application is not meritorious, it is unreasonable, no evidence was adduced to show that Counsel for the applicant informed his instructing client of the judgement on time, neither evidence showing that an email was sent and that failure to follow up the instructions sent through email amounts to negligence, the appeal has no chance of success, there is another application of stay in the lower Court and this application amounts to duplication of process.
5. I have considered the application and response thereof I find the reasons given sufficient to allow extention of time within which to file an appeal. The appeal be filed within 14 days subject to the entire decretal amount being deposited in Court within the same time.
Costs to the respondent in any event.
DATED and DELIVERED at BUNGOMA this 1st day of February, 2018
ALI-ARONI
JUDGE