[2016] KEHC 4597 (KLR)
The court found that the delay of 1 month and 20 days in filing the appeal was not inordinate given the circumstances, and the explanation of miscommunication between the applicant and its counsel was excusable. The grounds of appeal raised issues worth consideration by the court. Therefore, the court exercised its...
Source-derived case information.
- Citation
- [2016] KEHC 4597 (KLR)
- Parties
- Applicant: Jubilee Insurance Company Ltd; Respondent: Walter Tondo Soita
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case 7 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time and Stay of Execution
- Outcome
- Application allowed in part.
- Legal Topics
- Extension of Time, Stay of Execution, Leave to Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jubilee Insurance Company Ltd
Applicant
Walter Tondo Soita
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension 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 appeal.
- 3 Whether the delay in filing the appeal was inordinate or excusable.
Ratio Decidendi
The court found that the delay of 1 month and 20 days in filing the appeal was not inordinate given the circumstances, and the explanation of miscommunication between the applicant and its counsel was excusable. The grounds of appeal raised issues worth consideration by the court. Therefore, the court exercised its discretion to grant leave to file the appeal out of time and ordered that the decretal amount be secured in an interest-earning account as a condition for stay of execution. Costs of the application were awarded to the respondent.
Court Disposition
Application allowed in part.
Orders
- Leave granted to file appeal within 30 days.
- Decretal amount to be placed in an interest earning account in the names of current counsel for the parties within 30 days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISCELLENEOUS CASE NO. 7 OF 2016
JUBILEE INSURANCE COMPANY LTD…………………………………… PLAINTIFF
VERSUS
WALTER TONDO SOITA …………………………………….…………… DEFENDANT
RULING
The application before me is dated the 25th of February, 2016 filed pursuant to Order 40 Rule 6 Order 50 Rule 6 of the Civil Procedure Rules 2010 Sections 3A and 79 (9) of the Civil Procedure Act.
Relevant now are prayers 3, 4, & 6 seeking for extension of time within which to file an appeal or in other words leave to file an appeal out of time, stay of execution and provision for costs.
The application is based on the grounds that; the applicant intends to lodge an appeal against the judgement of Bungoma CMCC No. 832 of 2010, the applicant informed its counsel vide an which email for some reason was not received by counsel on the intention; that it is only on 24th of April, 2015 that both the applicant and counsel realized that there was lapse in this communication, delay is not inordinate, it is excusable and the appeal has a high chance of success.
The application was opposed through grounds of opposition and a replying affidavit of the respondent; where the respondent shows how the applicant was lax in prosecuting the defence case in the lower court, including seeking several adjournments, not calling any witnesses and failing to file submissions. It was further deposed that the appeal has no chance of succeeding; The applicant is a man of straw; and has not come to court with clean hands.
The appeal ought to have been filed on the 4th of January, 2016, the current application was filed on 25th of February, 2016. 1 month 20 days later the. Explanation is miscommunication between the applicant and its counsel. I have looked at the grounds of appeal and on the face of it the same raises issues that may be worth consideration by the court.
I do not find the period of 1 month and 20 days in the circumstances to be inordinate, I also find reasons given to be excusable.
The application in terms of prayer 3 & 2 therefore succeeds on the following terms
(a). Appeal be filed within the next 30 days subject to (b)
(b). The decretal amount be placed in an interest earning account in the names of current counsel on record for the parties within the next 30 days.
(c). Costs in the application to the respondent in any event
Delivered and DatedatBungomathis 2nd day of June, 2016.
ALI-ARONI
JUDGE.