[2010] KEHC 2788 (KLR)
The court found that the appeal was filed out of time and without leave of the court, as there was no application or order granting such leave on record. The presence of a certificate of delay did not cure the defect, since the appeal was filed before the certificate was issued and no leave was sought. Consequently,...
Source-derived case information.
- Citation
- [2010] KEHC 2788 (KLR)
- Parties
- Appellant: Irene Njoka; Respondent: Peter Njeru Nyaga
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 77 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Appeal Out of Time, Leave of Court, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Irene Njoka
Appellant
Peter Njeru Nyaga
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the appeal was filed out of time without leave of the court.
- 2 Whether an order for stay pending appeal can be granted where there is no competent appeal before the court.
Ratio Decidendi
The court found that the appeal was filed out of time and without leave of the court, as there was no application or order granting such leave on record. The presence of a certificate of delay did not cure the defect, since the appeal was filed before the certificate was issued and no leave was sought. Consequently, there was no competent appeal before the court. In the absence of a valid appeal, the court could not grant orders of stay pending appeal. The application for stay was therefore dismissed as devoid of merit.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 17/8/2009 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Civil Appeal 77 of 2009
IRENE NJOKA…………………………………………………………...APPELLANT
VERSUS
PETER NJERU NYAGA……………………………………………..RESPONDENT
R U L I N G
The Application at bar is the one dated 17/8/2009. It was filed during the court vacation and taken to the High Court sitting in Nyeri where there was a Judge on duty.
My brother Hon.Justice Sergon perused the file and noted that the Judgment in the lower court file was rendered on 20/11/2008. The appeal was filed on 20/6/2009 without leave to file the same out of time. I have perused the said files and I do not see any application seeking leave to file the appeal out of time or an order granting such leave. What I have seen in the file is a certificate of delay dated 24/6/2009 one day before the said Appeal. An application for leave to file the appeal out of time could not have been filed before the said certificate of delay was issued. The only inference I am able to make is that the “appeal” herein was filed out of time and without the leave of the court. There is therefore no competent appeal before this court. That being the case, orders of stay pending the hearing and determination of the appeal cannot lie.
In the circumstances, I make a finding that the application dated 17/8/2009 is totally devoid of merit and the same is hereby dismissed with costs to the decree holder/Respondent.
W. KARANJA
JUDGE
Delivered, dated and signed at Embu this 13th day of May 2010.
In presence of:- Respondent Peter Njeru present
N/A by Appellant