[2007] KEHC 2170 (KLR)
The court found that the appellants provided a satisfactory explanation for the delay in filing the appeal, namely that they only received notice of the entry of judgment on 3/3/07 rather than 23/2/07. The delay was neither inordinate nor inexcusable. Exercising its discretion under Section 79G of the Civil...
Source-derived case information.
- Citation
- [2007] KEHC 2170 (KLR)
- Parties
- Appellant: Joseph Kamau Mwangi; Appellant: Pact Kenya (Mombasa); Respondent: Banice Debora Kerubo Omundo
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 47 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Leave to File Appeal Out of Time and Stay Pending Appeal
- Outcome
- Leave to file appeal out of time granted; application for stay pending appeal refused.
- Legal Topics
- Extension of Time, Leave to Appeal Out of Time, Stay of Execution, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kamau Mwangi
Appellant
Pact Kenya (Mombasa)
Appellant
Banice Debora Kerubo Omundo
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Leave to File Appeal Out of Time and Stay Pending Appeal
Legal Issues
- 1 Whether the appellants should be granted leave to file the memorandum of appeal out of time.
- 2 Whether the court should grant a stay of execution pending appeal.
Ratio Decidendi
The court found that the appellants provided a satisfactory explanation for the delay in filing the appeal, namely that they only received notice of the entry of judgment on 3/3/07 rather than 23/2/07. The delay was neither inordinate nor inexcusable. Exercising its discretion under Section 79G of the Civil Procedure Act, the court granted leave for the memorandum of appeal to be deemed as filed out of time. However, the court declined to grant a stay of execution pending appeal because the application for stay did not properly invoke the court's jurisdiction under Order XLI rule 4 of the Civil Procedure Rules, and thus could not be granted gratuitously.
Court Disposition
Leave to file appeal out of time granted; application for stay pending appeal refused.
Orders
- Leave is granted for the memorandum of appeal filed on 29th March 2007 to be deemed as filed out of time with leave of court.
- Prayer for stay pending appeal is refused.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT MOMBASA
CIVIL APPEAL 47 OF 2007
JOSEPH KAMAU MWANGI
PACT KENYA (MOMBASA) …………………………….APPELLANT
VERSUS
BANICE DEBORA KERUBO OMUNDO……….....….RESPONDENT
(Arising from R.M.’s C.C.Case No. 3428 of 2005 at the Resident Magistrate’s court at Mombasa).
R U L I N G
The appellants herein, Joseph Kamau Mwangi and Pact Kenya (Mombasa) took a motion in which they prayed for leave to have the memorandum of appeal filed on 29th March 2007 to be deemed to have been filed out of time with leave of court. Mr. J.S. Kaburu, learned advocate for Banice Debora Kerubo Omundo, the Respondent herein strenuously opposed the motion by relying on the replying affidavit sworn by Banice Debora Kerubo.
The main ground argued by Mr. Kinyua for the applicant is to the effect that the appellant was not aware of the delivery of the judgment until 3/3/07. This ground appears not to be seriously contested by Mr. Kaburu. It is clear that under Section 79G of the Civil Procedure Act this court has a wide discretion to grant leave extending time to file an appeal out of time so long as one gives good reasons. I think the fact that notice of entry of Judgement was given on 3/3/2007 as opposed to 23/2/07 is a good reason to enable this court extend time. The delay to file appeal within time is not inordinate nor inexcusable. Consequently I grant the prayer for leave in terms of prayer 1 of the motion. As to whether or not to grant the prayer for stay pending appeal, I think the jurisdiction of this court has not been properly invoked under order XLI rule 4 of the Civil Procedure Rules. Consequently I will not grant the prayer gratuitously. The same is refused because it was not properly sought.
Those are the orders of the court.
Dated and delivered at Mombasa this 26th day of July 2007.
J.K. SERGON
J U D G E
In open court in the presence of Mr. Omondi h/b for Kinyua and Mr. Ouma h/b for Kaburu for Respondent.