[2021] KEHC 3731 (KLR)
The court found that the applicants had provided a reasonable explanation for the delay, namely the inaction of the Insurance Company and their subsequent discovery of the attachment of their property. The court held that the applicants should be given an opportunity to ventilate their appeal on merit, and that the...
Source-derived case information.
- Citation
- [2021] KEHC 3731 (KLR)
- Parties
- Applicant: James Kimuyu Ngeruro; Applicant: Wilson Kipchoge Chumba; Respondent: James Boit Simatwa (suing as personal representative of the Estate of Kiso Violet Macheso and next friend of Ruth Chepkemoi Boit)
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 12 & 13 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application allowed
- Judges
- LK Kimaru
- Legal Topics
- Extension of Time, Appeals Out of Time, Exercise of Discretion, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kimuyu Ngeruro
Applicant
Wilson Kipchoge Chumba
Applicant
James Boit Simatwa (suing as personal representative of the Estate of Kiso Violet Macheso and next friend of Ruth Chepkemoi Boit)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the court should exercise its discretion to extend time for the applicants to file an appeal out of time.
- 2 Whether the delay in filing the appeal was justified by the applicants.
- 3 Whether granting the extension would prejudice the respondent.
Ratio Decidendi
The court found that the applicants had provided a reasonable explanation for the delay, namely the inaction of the Insurance Company and their subsequent discovery of the attachment of their property. The court held that the applicants should be given an opportunity to ventilate their appeal on merit, and that the respondent would not be prejudiced as the court would make orders to secure the respondent's interests. Accordingly, the court exercised its discretion to allow the application for extension of time, subject to the applicants paying specified sums to the respondent within thirty days and the grant of a stay of execution pending appeal.
Court Disposition
application allowed
Orders
- Applicants to file and serve the Memorandum of Appeal within fourteen (14) days of the ruling date.
- Applicants in Misc. Application No. 13/2021 to pay the respondent KES 750,000 within thirty (30) days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
MISC. APPLICATION CASE NO 12 & 13 OF 2021
JAMES KIMUYU NGERURO..........................................................1ST APPLICANT
WILSON KIPCHOGE CHUMBA...................................................2ND APPLICANT
VERSUS
JAMES BOIT SIMATWA (suing as personal representative of the Estate of
KISO VIOLET MACHESOand next friend of
RUTH CHEPKWEMOI BOIT)............................................................RESPONDENT
RULING
The Applicants seek for orders of this court to extend time for them to lodge appeal out of time. The reason for the delay in lodging the appeal in time is because the Applicants claim that the Insurance Company failed to take action when it was informed of the outcome of the case. The Applicant only became aware of the inaction on the part of the Insurance Company when their property was attached. It is for that reason that the Applicants crave for this court’s exercise of discretion to allow him to file appeal out of time. The Applicants state that his appeal has high chances of success in light of the fact that the quantum of damages that was awarded to the Respondent was excessive in the circumstances. This court cannot delve into the merits of the appeal but suffice for this court to state that the Applicants have made a case for this court to exercise its discretion in their favour.
Although the Respondent vehemently opposed the application, this court is of the considered view that the Applicant should be given a chance to ventilate his appeal on merit. The Respondent shall not be prejudiced since this court shall make orders that will ensure that his rights are also taken into account.
In the Premises therefore, the Applicants’ application seeking extension of time to file appeal out of time is hereby allowed. The Applicants shall file and serve the Memorandum of Appeal within fourteen (14) days of today’s date.
So that the interest of the Respondent is secured, the Applicants in Misc. Application No. 13/2021 are ordered to pay to the Respondent the sum of Kshs 750,000/- within thirty (30) days of today’s day and in respect of Misc. Application No 12/2021 to pay the sum of Kshs 750,000/- within thirty (30) days of today’s date.
Stay of execution is granted pending the hearing of the appeal subject to the payment of the above sums.
The Applicant shall pay the auctioneers costs, to be agreed or taxed. The attached Motor Vehicle to be released once auctioneer’s charges are paid. In any event, the Respondent shall have the costs of the Application.
Dated, Signed and Delivered at Kitale on this 21st day of September 2021.
L. KIMARU
JUDGE