[2004] KEHC 1635 (KLR)
The court found that the applicant had not provided a satisfactory explanation for the delay of almost six years in seeking leave to appeal against the judgments entered on 21st October 1998. The applicant's claim that they believed the respondent would not execute against the judgment was not considered a valid...
Source-derived case information.
- Citation
- [2004] KEHC 1635 (KLR)
- Parties
- Applicant: Josiah N. Oyugi; Respondent: Betty Chelegat
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous 2004 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application dismissed with costs
- Judges
- K Bauni
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josiah N. Oyugi
Applicant
Betty Chelegat
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 appeals out of time against judgments entered on 21st October 1998.
- 2 Whether there should be a stay of execution of the lower court judgments pending the outcome of the proposed appeals.
- 3 Whether the delay of almost six years in seeking leave to appeal is justified.
Ratio Decidendi
The court found that the applicant had not provided a satisfactory explanation for the delay of almost six years in seeking leave to appeal against the judgments entered on 21st October 1998. The applicant's claim that they believed the respondent would not execute against the judgment was not considered a valid reason for the delay. Furthermore, the absence of a draft memorandum of appeal annexed to the application indicated a lack of seriousness on the part of the applicant. The court held that time for filing an appeal began to run from the date the judgments were entered, not from the date the application to set aside was dismissed. Consequently, the application lacked merit and was...
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL MISC. APPL. NO.58 OF 2004
JOSIAH N. OYUGI …………………………………….. APPLICANT/DEFENDANT
VERSUS
BETTY CHELEGAT …………………………………………….RESPONDENT
RULING
The applicant in his application dated 27th May 2004 has four prayers as follows: a). For purpose of this application only. Orders made herein to apply equally to to Kisii CM CC.NO.1363 OF 1996. b). Leave be granted to file appeals out of time for judgments of S.P.M. in Kisii CM.CC. NOS.1363 and 1366 of 1996. c). There be stay of execution of Kisii CM CC.NOS. 325 and 327 of 2004 pending the outcome of the proposed appeals. d). Costs of the application be provided for. Though the application is not very candid. Apparently there were two suits being Kisii CM CC.NO.1363 and 1366 of 1996 both against the applicant. On 21st October 1998 counsels for the parties entered a court judgment both on the decretal amount and costs.
In the year 2003 counsel for Respondents filed declaratory suits. Counsel for the applicants thereafter filed application to set aside the consent judgments. This application was dismissed on 4th March 2004. This application was filed on 2nd June 2004. Mr. Nyakeyo in his submission said that the date for delivery of the lower courts ruling was to be delivered on 16/1/04. It was not delivered on that date. They were not given Notice of the date of delivery. I think Mr. Nyakeyo was a bit confused. The application before me is not to appeal against the court’s ruling of 4th March 2004 which dismissed their application. It is an application to appeal against the judgments entered on 21st October 1998. Prayer (b) of the application is very clear on that. The grounds in support of the application are also clear.
There was no explanation only it took the applicant almost 6 years to appeal. The claim that they thought that the Respondent will not execute against the judgment is not a good reason. From 1998 to 2003 they had not applied to set those judgments aside. Time did not start running on 4th March 2004 when their application was rejected but from 21st October 1998 when the judgments were entered. There is no draft memo of appeal annexed to the application. This shows that the applicants are not serious.
All in all I find application has no merit and the same is dismissed with costs.
KABURU BAUNI
JUDGE.
26/7/04
Delivered 26th July 2004 in presence of Mr. Nyamurongi.
KABURU BAUNI
JUDGE