[2022] KEHC 13604 (KLR)
The court found that the applicant had provided a reasonable explanation for the delay in filing the notice of appeal, namely, the inability to access the ruling and the court file in a timely manner, which was not contested by the respondent. The court recognized the applicant's right to challenge the orders,...
Source-derived case information.
- Citation
- [2022] KEHC 13604 (KLR)
- Parties
- Applicant: Isaac Allan Mukhwana; Respondent: Murichi Luta Barasa
- Court
- High Court
- Court Station
- High Court at Vihiga
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 699 of 2011
- Procedural Posture
- Succession Cause / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- Application for leave to file notice of appeal out of time granted; stay of execution to be sought after notice of appeal is filed; costs in the cause.
- Judges
- WM Musyoka
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Discretion of Court, Succession Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Allan Mukhwana
Applicant
Murichi Luta Barasa
Respondent
Procedural Posture
Succession Cause / 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 a notice of appeal out of time.
- 2 Whether stay of execution of the orders of November 19, 2021 should be granted.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the delay in filing the notice of appeal, namely, the inability to access the ruling and the court file in a timely manner, which was not contested by the respondent. The court recognized the applicant's right to challenge the orders, especially given the serious consequences, including recommendations for prosecution and ongoing investigations by the directorate of criminal prosecutions. Exercising its discretion, the court granted leave to file the notice of appeal out of time for 30 days, but directed that any application for stay of execution should be made after the notice of appeal is filed. Costs were...
Court Disposition
Application for leave to file notice of appeal out of time granted; stay of execution to be sought after notice of appeal is filed; costs in the cause.
Orders
- Leave to file notice of appeal out of time is granted for 30 days.
- Stay of execution to be sought after notice of appeal is filed.
Full Case Text
Judgment text and source record
14 paragraphs
In re Estate of Juma Tsabuko Nyawanga (Deceased) (Succession Cause 699 of 2011) [2022] KEHC 13604 (KLR) (7 October 2022) (Ruling)
Neutral citation: [2022] KEHC 13604 (KLR)
Republic of Kenya
In the High Court at Vihiga
Succession Cause 699 of 2011
WM Musyoka, J
October 7, 2022
Ruling
1. The application dated February 8, 2022 is up for determination. It seeks leave to file appeal against orders that were made herein on November 19, 2021, and stay of execution of the said orders.
2. The said application is founded on the grounds on the face of the application, as well as the facts set out on the affidavit in support sworn by the applicant. Isaac Allan Mukhwana. He avers that he attended the delivery of the ruling virtually, but, although he could see the judge on the screen, he could not hear what was said as the judge was not audible. He could not access the physical file as the same was said to be with the Judge, and he did not access it until January 7, 2022. He got a copy of the ruling, dated December 30, 2021, and after reading it he was aggrieved, hence the instant application.
3. Murichi Luta Barasa has replied to the application, vide his affidavit sworn on February 25, 2022. He avers that stay can only be granted on the basis of there being a notice of appeal. He avers that the applicant will not be prejudiced by the orders of November 19, 2021.
4. The only issue for me to determine is whether I should exercise discretion and grant leave to file notice of appeal out of time. I note from the record that the ruling had been reserved for February 16, 2021, but was not delivered until November 19, 2021. The applicant avers that he did not access the file until January 2022. That is not contested by the respondents. I have considered the orders made in the ruling delivered on November 19, 2021, and that there are recommendations for prosecution. There are documents on record to indicate that the directorate of criminal prosecutions is investigating. The applicant is within his rights to challenge the orders made in the said ruling, should he be aggrieved.
5. I am persuaded that a case has been made out to grant f the orders sought in the application dated February 8, 2022. I hereby grant the same. Leave shall be for 30 days. Let stay of execution be sought after notice of appeal is filed. Costs shall be in the cause.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 7th DAY OF OCTOBER 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Mr. Makokha , instructed by the JP Makokha & Company, Advocates for the applicant.Mr. Osango, instructed by Osango & Company, Advocates for the respondents