[2008] KEHC 1808 (KLR)
The court found that the delay of 16 days in filing the appeal was not so inordinate as to bar the appellants from pursuing their appeal, especially since the explanation, though unsupported, was not unreasonable. The court acknowledged that the appeal was initially defective for lack of leave, but this could be...
Source-derived case information.
- Citation
- [2008] KEHC 1808 (KLR)
- Parties
- Appellant: James Kagai Kangaru; Appellant: AIC Kijabe Station Management; Respondent: Samuel Ndungu Chege
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 341 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- Application allowed in part; leave to appeal out of time granted; memorandum of appeal deemed properly filed; conditional stay of execution granted.
- Judges
- GG Okwengu
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Appeal Regularization, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kagai Kangaru
Appellant
AIC Kijabe Station Management
Appellant
Samuel Ndungu Chege
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether leave should be granted to file the appeal out of time.
- 2 Whether the memorandum of appeal filed on 25th June, 2008 should be deemed properly filed.
- 3 Whether an order for stay of execution pending appeal should be granted and on what terms.
Ratio Decidendi
The court found that the delay of 16 days in filing the appeal was not so inordinate as to bar the appellants from pursuing their appeal, especially since the explanation, though unsupported, was not unreasonable. The court acknowledged that the appeal was initially defective for lack of leave, but this could be cured by granting leave and deeming the appeal properly filed. On the issue of stay of execution, the court noted that the respondent's means were not controverted and that the appellants had deposited Kshs.400,000 as security. However, since liability was agreed and only quantum was in dispute, the court balanced the interests of both parties by ordering partial release of the...
Court Disposition
Application allowed in part; leave to appeal out of time granted; memorandum of appeal deemed properly filed; conditional stay of execution granted.
Orders
- Leave granted to the appellants to file their appeal out of time.
- The memorandum of appeal filed on 25th June, 2008 is deemed properly filed.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 341 of 2008
JAMES KAGAI KANGARU….....…………..1ST APPELLANT
AIC KIJABE STATION MANAGEMENT...2ND APPELLANT
VERSUS
SAMUEL NDUNGU CHEGE……………...…..RESPONDENT
R U L I N G
James Kagai Kangaru and AIC Kijabe Station Management, (hereinafter referred to as 1st and 2nd appellants), seek orders for leave to file appeal out of time and to have the memorandum of appeal filed on 25th June, 2008 deemed to have been properly filed.
The 1st and 2nd appellants also seek an order for stay of execution of the judgment of the Principal Magistrate, delivered on 8th May, 2008 in Limuru Resident Magistrate’s Court Civil Case No. 88 of 2007, pending the hearing and determination of the intended appeal.
The 1st appellant has sworn an affidavit in which he explains that the delay in filing the appeal in time arose because the 1st appellant had to consult with his insurers. It is contended that Samuel Ndungu Chege, the respondent herein is not a man of means, to be able to refund the decretal sum should the appeal be successful.
Pursuant to a court order issued on 26th June, 2008, the appellant has deposited a sum of Kshs.400,000/= into court as security. Counsel for the appellants relied on the case of Musalia Mwenesi Advocate Vs Kan General SuppliesLtd & 3 Others High Court Misc. application No. 56 of 2006 (Milimani). He submitted that the appellant had complied with the principles for granting an order of stay of execution as set out under Order XLI Rule 4(2) of the Civil Procedure Rules.
For the respondent it was submitted that no sufficient cause has been shown for granting leave to file the appeal out of time. It was maintained that there was no evidence of any consultation or correspondence between the applicant and his insurers. It was submitted that the appellant’s application was incompetent as it was premised on an incompetent appeal, the appeal having been filed without leave of the court. It was maintained that the court has no powers to grant orders for stay of execution pending an intended appeal.
The court was further urged if inclined to grant the application to order the deposited amount released to the respondent and the balance of the decretal sum deposited in court in view of the fact that, liability was agreed upon by consent and the appeal is therefore against the quantum of damages only.
It is evident that the appellant was rather lax in pursuing his appeal and appears only to have been spurred into action by the process of execution which was initiated by the respondent. Nonetheless a period of 16 days delay is not so inordinate as to justify shutting out the appellant from pursuing his appeal. The explanation given for the delay although unsupported by any evidence is not really unbelievable or unreasonable.
It is true that the appeal as filed was defective as no leave had been given by the time of filing the appeal. That however is precisely the reason why the appellant’s first prayer is leave and the 2nd prayer is to regularize the appeal by having the same deemed as properly filed. Once these prayers are granted, the appeal is no longer an intended appeal and the court can proceed to consider the prayer for stay of execution pending appeal. The respondent has not controverted the appellant’s allegation that he is not a person of means and that he may have difficulties in refunding the decretal sum should that become necessary.
However, I take note of the fact that judgment on liability was entered by consent of both parties. The fact that the appellant disputes the quantum awarded is not sufficient reason to keep the respondent away from the fruits of his judgment. Accordingly, I make the following orders: -
(1) Leave shall issue to the appellants to file their appeal out of time.
(2) The memorandum of appeal filed on 25th June, 2008 shall be deemed properly filed.
(3) An order for stay of execution pending appeal shall issue on the following conditions: -
(a) That the sum of Kshs.400,000/= deposited in court by the appellant shall be released forthwith to the respondent.
(b) That the appellant shall deposit the balance of the decretal amount into an interest earning account with a reputable financial institution in the joint names of the parties’ advocates within 30 days from the date hereof.
(c) That the appellant shall file a record of appeal within 90 days from the date hereof and take all necessary action to facilitate the speedy disposal of the appeal.
(d) That the order for stay of execution pending appeal shall lapse 12 months from the date hereof unless otherwise extended by the court.
Orders Accordingly.
Dated and delivered this 28th day of July, 2008
H. M. OKWENGU
JUDGE
In the presence of: -
Mwanyala for the appellant
Ngare for the respondent