[2019] KEHC 3584 (KLR)

[2019] KEHC 3584 (KLR)

The court found that the delay of 31 days in filing the appeal was not inordinate and was satisfactorily explained as resulting from the insurer's failure to give timely instructions. The court exercised its discretion to grant leave to appeal out of time, holding that it would be unjust for the applicant to suffer...

Source-derived case information.

Citation
[2019] KEHC 3584 (KLR)
Parties
Applicant: Joseph Kironyo; Respondent: Lucy Wathinia Komu (suing as administratix of the estate of John Kinuthia Mwaura, deceased)
Court
High Court
Court Station
High Court at Kitui
Jurisdiction
Kenya
Case Number
Miscellaneous Civil Application 32 of 2019
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Outcome
Application for leave to appeal out of time and stay of execution granted with conditions.
Judges
LN Mutende
Legal Topics
Extension of Time, Stay of Execution, Appeals From Subordinate Courts, Security for Due Performance
Source Language
en
Civil Procedure Extension of Time Stay of Execution Appeals From Subordinate Courts Security for Due Performance

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Parties

Joseph Kironyo

Applicant

Lucy Wathinia Komu (suing as administratix of the estate of John Kinuthia Mwaura, deceased)

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 applicant has demonstrated sufficient cause for extension of time to file an appeal out of time.
  2. 2 Whether the applicant is entitled to an order for stay of execution pending appeal.
  3. 3 What conditions, if any, should be imposed for the grant of stay of execution.

Ratio Decidendi

The court found that the delay of 31 days in filing the appeal was not inordinate and was satisfactorily explained as resulting from the insurer's failure to give timely instructions. The court exercised its discretion to grant leave to appeal out of time, holding that it would be unjust for the applicant to suffer due to the insurer's conduct. On the issue of stay of execution, the court applied the principles under Order 42 Rule 6(2) of the Civil Procedure Rules and relevant case law, finding that the applicant had met the threshold for stay. However, to balance the interests of both parties, the court ordered that half the decretal sum be paid to the respondent within 21 days and the...

Court Disposition

Application for leave to appeal out of time and stay of execution granted with conditions.

Orders

  • Leave granted to the applicant to file appeal out of time within 21 days.
  • Stay of execution of the judgment and decree in Kitui CMCC No. 383 of 2017 granted pending appeal, on condition that the applicant pays the respondent half the decretal sum within 21 days.