[2007] KEHC 1442 (KLR)
The court found that the applicant had demonstrated genuine efforts to comply with the court's previous orders by raising part of the required sum and was not merely seeking to delay the process. The court exercised its discretion to grant a stay of execution for 60 days to allow the applicant to organize himself...
Source-derived case information.
- Citation
- [2007] KEHC 1442 (KLR)
- Parties
- Applicant: John Ndugire; Respondent: Samuel Wainaina t/a F. G. Harris & Co.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2466 of 1998
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution and Extension of Time to Appeal
- Outcome
- Application allowed. Stay of execution granted for 60 days. Applicant to pay costs of the application to the respondent.
- Legal Topics
- Stay of Execution, Extension of Time, Appeals Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Ndugire
Applicant
Samuel Wainaina t/a F. G. Harris & Co.
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution and Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant should be granted a stay of execution pending appeal.
- 2 Whether the applicant should be granted an extension of time to lodge an appeal out of time.
- 3 Whether filing the application by Chamber Summons instead of Notice of Motion is a fatal irregularity.
Ratio Decidendi
The court found that the applicant had demonstrated genuine efforts to comply with the court's previous orders by raising part of the required sum and was not merely seeking to delay the process. The court exercised its discretion to grant a stay of execution for 60 days to allow the applicant to organize himself and lodge the intended appeal. The court further held that the use of Chamber Summons instead of Notice of Motion was not a fatal irregularity and should not bar the application. The interests of justice required granting the applicant the opportunity to appeal out of time, subject to payment of costs to the respondent.
Court Disposition
Application allowed. Stay of execution granted for 60 days. Applicant to pay costs of the application to the respondent.
Orders
- Stay of execution granted for 60 days from the date of the ruling.
- Applicant to organize himself and lodge the intended appeal within the 60-day period.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 2466 of 1998
JOHN NDUGIRE ……………………………..……………….PLAINTIFF
VERSUS
SAMUEL WAINAINA t/a F. G.HARRIS & CO. ….…...….DEFENDANT
RULING
In view of submissions made by counsel for both parties and in particular counsel for the applicant who is in fact seeking sometime to dispose of the motor vehicle he was allowed to own but pay Kshs.1. 2 million for it and which he is trying to dispose off in order to raise this money, it is only fair and in the interest of justice that he be given sometime to organize himself.
I take note that since the Deputy Registrar’s order the applicant has so far raised the sum of Kshs.105,000/= and, given this spirit, I do not think the applicant is simply buying time by making the current application.
Counsel for the respondent opposes the application because time has lapsed hence the applicant has no right of appeal. But this is why the applicant is before this Court to seek extension of time to lodge such appeal out of time and it is within the discretion this Court to either grant or refuse to grant the same.
That such application has been filed by way of Chamber Summons instead of Notice of Motion is not to my mind of a fatal irregularity and this application cannot be refused merely because of that reason.
I allow this application and grant the applicant Stay of Execution for 60 (sixty) days within which period the applicant should have organized himself and lodged the intended appeal. Costs of this application should however be paid by the applicant to the respondent either agreed or taxed.
Delivered, signed and dated at Nairobi this 6th day of November 2007.
D. K. S. AGANYANYA
JUDGE