[2019] KEHC 6927 (KLR)
The court found that the delay in lodging the application and the memorandum of appeal was sufficiently explained by the applicants. The court balanced the applicants' right of appeal against the respondents' right to enjoy the fruits of their judgment. It held that security for the decretal sum, to be deposited in...
Source-derived case information.
- Citation
- [2019] KEHC 6927 (KLR)
- Parties
- Applicant: James Mungai Ngumba; Applicant: Saris Hardward Limited; Respondent: Sarah Waringa Gathage; Respondent: Grace Mwongeli Mutuku (Suing as the Legal Representatives of the Estate of Simon Mutuku Mutinda (Deceased))
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 403 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application allowed with conditions
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Subrogation, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mungai Ngumba
Applicant
Saris Hardward Limited
Applicant
Sarah Waringa Gathage
Respondent
Grace Mwongeli Mutuku (Suing as the Legal Representatives of the Estate of Simon Mutuku Mutinda (Deceased))
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicants should be granted leave to file an appeal out of time.
- 2 Whether a stay of execution of the lower court decree should be granted pending appeal.
- 3 Whether the delay in filing the application and memorandum of appeal was sufficiently explained.
Ratio Decidendi
The court found that the delay in lodging the application and the memorandum of appeal was sufficiently explained by the applicants. The court balanced the applicants' right of appeal against the respondents' right to enjoy the fruits of their judgment. It held that security for the decretal sum, to be deposited in an interest-earning account in the names of both advocates, would adequately protect the respondents. The court exercised its discretion to grant leave to appeal out of time and ordered a stay of execution on condition that the decretal sum is deposited as security within 30 days. The memorandum of appeal must be filed within seven days upon payment of requisite court fees.
Court Disposition
application allowed with conditions
Orders
- Leave to file appeal out of time is granted.
- Stay of execution of the lower court decree is granted, provided the decretal sum is deposited in an interest-earning account in the names of both advocates within 30 days.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANESOUS APPLICATION NO. 403 OF 2018
JAMES MUNGAI NGUMBA....................................................1ST APPLICANT
SARIS HARDWARD LIMITED...............................................2ND APPLICANT
VERSUS
SARAH WARINGA GATHAGE
GRACE MWONGELI MUTUKU (Suing as the Legal Representatives of the
Estate ofSIMON MUTUKU MUTINDA (DECEASED).............. RESPONDENT
RULING
This is an application dated 24th July, 2018 for leave to lodge, file and serve appeal out of time and that the Memorandum of Appeal be filed upon payment of requisite fees; lastly that there be a stay of execution of the lower court decree made on 17th May, 2018. The application is supported by an affidavit sworn by Lydia Mwangi the legal officer with CIC General Insurance Limited, alongside the grounds set out on the face of the application.
The insurance company was not a party to the original suit but is said to be exercising its powers under the doctrine of subrogation. The application is opposed and there is a replying affidavit together with grounds of opposition filed on behalf of the respondents. Both parties have also filed authorities to assist the court in the determination of the application, in which both counsel agreed should be addressed based on the affidavit evidence and authorities cited.
I have read the authorities cited and considered the rival arguments by the parties in their respective affidavits. The applicants have the right of appeal while on the other hand, the respondents have a judgment in their favour which they wish to execute. There is always the balancing act in considering the positions of the parties in such applications, and in view of the provisions of order 42 rules 6 of the Civil Procedure Rules.
The delay in lodging the application and also the Memorandum of Appeal has been sufficiently explained to the satisfaction of the court. There should be no fear on the part of the respondents that the insurance company is incapable of meeting the decree that may be found against the applicants in view of the fact that security is a requirement under Order 47 Rule 6 aforesaid. The orders sought are discretionary and I am persuaded to exercise that discretion in favour of the applicants by allowing the application. There shall be a stay of execution provided that the decretal sum shall be deposited in an interest earning account in the names of both advocates on record for the parties within 30 days from the date of this ruling.
The Memorandum of Appeal shall be filed on payment of the requisite court fees within seven days from the date of the ruling. The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 30th Day of April, 2019.
A. MBOGHOLI MSAGHA
JUDGE