[2019] KEHC 726 (KLR)
The court found that the delay in lodging the application for stay of execution and leave to appeal out of time could not be attributed to the applicant, as the lower court delivered its ruling in the absence of the parties. The applicant had deposited Kshs. 1.4 million, and the respondent did not dispute this,...
Source-derived case information.
- Citation
- [2019] KEHC 726 (KLR)
- Parties
- Applicant: Intex Construction Limited; Respondent: CMC Aviation Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 600 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Delay in Filing, Access to Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Intex Construction Limited
Applicant
CMC Aviation Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the lower court judgment pending appeal.
- 2 Whether leave to appeal out of time should be granted to the applicant.
- 3 Whether the delay in lodging the application was adequately explained.
Ratio Decidendi
The court found that the delay in lodging the application for stay of execution and leave to appeal out of time could not be attributed to the applicant, as the lower court delivered its ruling in the absence of the parties. The applicant had deposited Kshs. 1.4 million, and the respondent did not dispute this, indicating no prejudice would be suffered. In the interest of justice and access to the courts, the court exercised its discretion to allow the application, granting both the stay of execution and leave to appeal out of time. Costs were ordered to abide by the outcome of the appeal.
Court Disposition
application allowed
Orders
- Stay of execution of the lower court judgment delivered on 7th February, 2019 is granted.
- Leave to appeal out of time is granted.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC APPLICATION NO. 600 OF 2019
INTEX CONSTRUCTION LIMITED ………..PLAINTIFF/APPLICANT
VERSUS
CMC AVIATION LIMITED ………................……………… RESPONDENT
RULING
This is a Notice of Motion by the applicant under Order 42 rule 6, Order 50 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, seeking the substantive order that, there be a stay of execution of the lower court judgment delivered on 7th February, 2019. There is also an order sought that leave be granted to appeal out of time, and the draft Memorandum of Appeal be deemed as filed.
Several grounds have been set out on the face of the application together with the supporting affidavit sworn by the advocate for the applicant. The application is opposed and there is a replying affidavit sworn by the Director of Quality Assurance of the defendant.
There is evidence that the applicant made an application in the lower court to reopen their case, where it is said there is a pending ruling. Whatever the case, it is alleged that the applicant voluntarily closed their case in the lower court and in any case, there has been a delay of seven months before any application was lodged in this court.
The principles of justice advocate the rights of parties to fair trial. The interests of the parties however, have to be taken into consideration so that all parties have their day in court. That is the whole essence of access to justice. The applicant has indicated that the amount of Kshs. 1. 4 million has been deposited and therefore no prejudice shall be occasioned to the respondent. This has not been disputed. I have noted the submission that the delay in lodging this application has not been adequately explained. A look at the ruling of the lower court shows clearly that it was delivered on “7th February, 2019 in the absence of the parties”.
The delay therefore cannot be attributed to the applicant. In the interest of justice, I am persuaded that the application should be allowed and therefore grant orders as prayed. The costs shall abide by the outcome of the appeal.
Dated, signed and delivered at Nairobi this 27th Day of November, 2019.
A. MBOGHOLI MSAGHA
JUDGE