[2001] KEHC 737 (KLR)
The court found that the applicant had provided a satisfactory explanation for the delay in filing the appeal and that denying leave on technical grounds would not serve the ends of justice. Consequently, leave to file the appeal out of time was granted, and the appeal was deemed duly filed and served. The court was...
Source-derived case information.
- Citation
- [2001] KEHC 737 (KLR)
- Parties
- Plaintiff: Jane Nyaboke Njagi T/A Njagi Nyaboke & Co; Defendant: Dr. Wokabi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 322 of ??
- Procedural Posture
- Civil Case / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application allowed
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Nyaboke Njagi T/A Njagi Nyaboke & Co
Plaintiff
Dr. Wokabi
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time.
- 2 Whether a stay of execution pending appeal should be granted.
Ratio Decidendi
The court found that the applicant had provided a satisfactory explanation for the delay in filing the appeal and that denying leave on technical grounds would not serve the ends of justice. Consequently, leave to file the appeal out of time was granted, and the appeal was deemed duly filed and served. The court was also satisfied that the applicant was capable of repaying the decretal sum if the appeal did not succeed, and therefore granted a stay of execution pending the appeal. The application was allowed in terms of the prayers sought, subject to the applicant paying the costs of the application.
Court Disposition
application allowed
Orders
- Leave to file the appeal out of time is granted; the appeal is deemed duly filed and served.
- Stay of execution of the judgment decree pending appeal is granted.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI CIVIL CASE NO. 322 OF 2000
JANE NYABOKE NJAGI T/A NJAGI NYABOKE & Co……………………….……...1ST PLAINTIF -VERSUS- DR. WOKABI……………………………………………………….…….DEFENDANT
RULING
The application is by a Notice of Motion filed under Order 41
Rule 4 and 6 and Order 50 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act asking for the Orders that:
(1) There be a Stay of Execution of the Judgement decree pending the appeal.
(2) Interim Orders for Stay of Execution pending inter-parties hearing of this application be granted.
In the supporting affidavit the applicant deponed that the judgement in question was given on 30-5-2000 for sum of Shs.195,515 together with interest and costs. Notice of appeal and a memorandum of appeal were filed on 6th June, 2000 and 4th July, 2000 respectively.
The application is opposed on the ground that there was a similar application, which was heard and dismissed by Commissioner Gacheche on 18. 1.2000. I have looked at the Ruling by Commissioner Gacheche. The application was rejected because the intended appeal was filed late and without leave to file it out of time. In the present application the applicant is asking for leave to file the appeal out of time. The applicant has in her affidavit in support explained the circumstances, which led to the delay. I do not think the ends of justice will be served by denying the applicant the right to exercise her right to appeal on such technical grounds as are advanced. I will therefore grant the leave to file the appeal out of time. To that extend the appeal shall be deemed to be duly filed and served. Following this leave I shall grant the Stay of Execution. I am satisfied that the applicant is in a position to repay the decretal sum in the event the appeal does not succeed. The application is therefore allowed in terms of prayers 1,2 and 3 of the Notice of Motion. The applicant will however pay the costs of this application in any event.
Delivered and dated this 27th day of February, 2001.
KASANGA MULWA JUDGE