[2012] KEHC 4465 (KLR)
The court found that since the respondents did not oppose the application for leave to appeal out of time, and the applicant had complied with the interim order by depositing the decretal sum in court, it was appropriate to grant leave to appeal out of time. The court also granted a stay of execution pending the...
Source-derived case information.
- Citation
- [2012] KEHC 4465 (KLR)
- Parties
- Applicant: Gibson Karige; Respondent: Joseph Waweru Nganga & Peter Nganga (Suing on their own behalf and for benefit of the Estate of Francis Njuguna Nganga, deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 296 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- Application allowed in part.
- Judges
- DA Onyancha
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Enlargement of Time, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gibson Karige
Applicant
Joseph Waweru Nganga & Peter Nganga (Suing on their own behalf and for benefit of the Estate of Francis Njuguna Nganga, deceased)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time.
- 2 Whether a stay of execution should be granted pending the intended appeal.
- 3 Whether the respondents are entitled to release of the decretal sum deposited in court.
Ratio Decidendi
The court found that since the respondents did not oppose the application for leave to appeal out of time, and the applicant had complied with the interim order by depositing the decretal sum in court, it was appropriate to grant leave to appeal out of time. The court also granted a stay of execution pending the filing and determination of the intended appeal to preserve the subject matter. The respondents' request for release of the decretal sum was not properly before the court, as no formal application had been made; thus, the court declined to address that issue at this stage but left the door open for a formal application to be made in the future.
Court Disposition
Application allowed in part.
Orders
- Leave to file appeal out of time is hereby granted.
- The intended appeal should be filed within 14 days or in default the leave to automatically lapse.
Full Case Text
Judgment text and source record
28 paragraphs
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REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
(MILIMANI COMMERCIAL COURTS COMMERCIAL & TAX) DIVISION
MISCELLENIOUS APPLICATION 296 of 2011
JOSEPH WAWERU NGANGA &
PETER NGANGA (Suing on their own behalf and for benefit of the Estate of
FRANCIS NJUGUNA NGANGA, deceased).................................. RESPONDENT
VERSUS
GIBSON KARIGE................................................................................... APPLICANT
R U L I N G
The application before the court is a Notice of Motion dated 8th July 2011 seeking for enlargement of time to file an appeal out of time, it also seeks a stay of execution of the decree pending the filing, hearing and determination the intended appeal.
By orders made earlier, the stay was granted on interim basis on condition that the whole decretal sum was deposited in court. On 1st August, 2011 the decretal sum of Ksh.967,705/- was apparently deposited in court.
Both parties filed their written submissions. The Respondents do not oppose the applicant’s prayer to file appeal out of time. What they say is that since the applicant had consented to liability up to 75%, the decretal sum or part thereof now deposited in court should be released to them so that they can enjoy the fruits thereof.
I have considered the matter. Since the leave, to appeal out of time is not opposed and since the applicant seeks stay until the intended appeal is filed and finally determined, the court should also grant stay until then.
It is at the same time observed that the Respondents have not really and properly filed any application seeking release of the decretal sum or part thereof. That issue is, therefore, not really or properly before the court for determination. The Respondents would, therefore, be at liberty to formally apply, giving the applicants/appellant opportunity to reply. The court will then determine the issue on merit.
ORDERS
1. Leave to file appeal out of time is hereby granted.
2. The intended appeal should be filed within 14 days or in default the leave to automatically lapse.
3. Costs of this application in the intended appeal.
Dated and delivered at Nairobi this 23rd day of April, 2012.
.........................................
D A ONYANCHA
JUDGE