[2016] KEHC 2607 (KLR)

[2016] KEHC 2607 (KLR)

The court found that the applicants provided a satisfactory explanation for the delay in filing the appeal, namely that judgment was delivered during a nationwide advocates' strike, and thus exercised its discretion to grant leave to appeal out of time. However, the court held that the applicants failed to satisfy the mandatory requirements for a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. Specifically, they did not demonstrate that they would suffer substantial loss if stay was not granted, nor did they offer any security for the due performance of the decree. The decree in question was a money decree, and the respondent's financial ability to refund the...

Citation
[2016] KEHC 2607 (KLR)
Parties
Applicant: Joseph Gitonga Kuria; Applicant: Elizabeth Wambui Gitonga; Respondent: Daniel Githaiga Mwaniki
Court
High Court
Court Station
High Court at Nyeri
Jurisdiction
Kenya
Judgment Date
10 October 2016
Case Number
Civil Application 28 of 2016
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Outcome
Application partly allowed and partly declined.
Legal Topics
Leave to Appeal Out of Time, Stay of Execution, Discretionary Powers of Court, Money Decree, Substantial Loss, Security for Costs
Source Language
English
Civil Procedure Leave to Appeal Out of Time Stay of Execution Discretionary Powers of Court Money Decree Substantial Loss Security for Costs

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 11 Party arguments 2
Sign in to unlock

Parties

Joseph Gitonga Kuria

Applicant

Elizabeth Wambui Gitonga

Applicant

Daniel Githaiga Mwaniki

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution

Legal Issues

  1. 1 Whether the applicants have established sufficient grounds for leave to appeal out of time.
  2. 2 Whether the applicants have satisfied the conditions for grant of stay of execution pending appeal.

Ratio Decidendi

The court found that the applicants provided a satisfactory explanation for the delay in filing the appeal, namely that judgment was delivered during a nationwide advocates' strike, and thus exercised its discretion to grant leave to appeal out of time. However, the court held that the applicants failed to satisfy the mandatory requirements for a stay of execution under Order 42 Rule 6 of the Civil Procedure Rules. Specifically, they did not demonstrate that they would suffer substantial loss if stay was not granted, nor did they offer any security for the due performance of the decree. The decree in question was a money decree, and the respondent's financial ability to refund the...

Court Disposition

Application partly allowed and partly declined.

Orders

  • The applicants are granted leave to file their intended appeal in the High Court against the judgment/decree delivered in RMCC No. 28 of 2014 within 14 days from the date of this ruling.
  • The prayer to stay the judgment/decree issued in RMCC No. 28 of 2014 is refused.