[2015] KEHC 396 (KLR)
The court found that the delay in filing the appeal was satisfactorily explained by the applicant, as it was caused by the abrupt departure of their counsel without proper handing over. The court accepted the explanation as credible and excusable. The court also found merit in the intended appeal based on the...
Source-derived case information.
- Citation
- [2015] KEHC 396 (KLR)
- Parties
- Respondent: Julius G. Macharia (Suing as a legal representative to the estate of Humprey Maina Macharia, Deceased); Applicant: Daniel Mwai Rugano
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 216 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application allowed with conditions
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Delay in Filing Appeal, Excusable Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Julius G. Macharia (Suing as a legal representative to the estate of Humprey Maina Macharia, Deceased)
Respondent
Daniel Mwai Rugano
Applicant
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 appeal out of time against the judgment of the Senior Resident Magistrate at Embu.
- 2 Whether a stay of execution of the decree arising from the judgment should be granted pending appeal.
Ratio Decidendi
The court found that the delay in filing the appeal was satisfactorily explained by the applicant, as it was caused by the abrupt departure of their counsel without proper handing over. The court accepted the explanation as credible and excusable. The court also found merit in the intended appeal based on the annexed memorandum of appeal. The court held that unless leave to appeal out of time and stay of execution were granted, the intended appeal could be rendered nugatory. Accordingly, the court exercised its discretion to grant the prayers sought, subject to the applicant depositing the whole decretal amount in court within 30 days as security.
Court Disposition
application allowed with conditions
Orders
- Leave to appeal out of time against the judgment of the Senior Resident Magistrate at Embu is granted.
- Stay of execution of the decree arising from the judgment is granted pending hearing and determination of the intended appeal.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC CIVIL APPLICATION NO. 216 OF 2015
JULIUS G. MACHARIA(Suing as a legal representative to the estate of
Humprey Maina Macharia(DECEASED)...............................................PLAINTIFF/RESPONDENT
VERSUS
DANIEL MWAI RUGANO...............................................................................DEFENDANT/APPLICANT
RULING
This application was brought under certificate of urgency dated 2nd November, 2015 seeking leave to appeal out of time against the judgement of the court of Senior Resident Magistrate at Embu, which was delivered on 21st July, 2015. Additionally, it also seeks stay of execution of the decree arising out of the same judgement.
The application is supported by a supporting affidavit of Sandra Nyakweva dated 2nd November, 2015 and Joseph Karanja dated 2nd November, 2015.
According to those affidavits, the applicant was ordered to pay the respondent/plaintiff a sum of Kshs 1,680,200/- being general damages arising out of a fatal road accident. They have also stated that counsel who was prosecuting the case on behalf of the applicant left the firm abruptly without a proper handing over, thus leading to the delay in filing and prosecuting the intended appeal and the related stay of execution of the monetary decree.
Furthermore, they have stated that by the time they discovered that judgement had been entered against the applicant, the time allowed for lodging the appeal had lapsed by 20th August, 2015.
They have further stated that they are ready and willing to pay half of the decretal sum of money to the respondent and deposit the balance in court pending the hearing and determination of the appeal.
Finally, they have stated that unless their prayers for leave to appeal out of time and for stay of execution are granted, the applicant's intended appeal will be rendered nugatory.
The respondent, although served, did not file any replying affidavit. The respondent did not attend court during the hearing of this application. The application proceeded ex-parte.
I have perused the affidavit evidence of the applicant and I find it credible. I accept their explanation of the delay in prosecuting this application was due to the departure of the applicant's counsel without a proper handing over of this matter. The delay is excusable.
Furthermore, I also find that there is merit in the intended appeal, which is evident from the memorandum of appeal, that is annex “SN 2” to the affidavit of Sandra Nyakweba.
In the light of the foregoing, I find that unless the two prayers are granted, the intended appeal may be rendered nugatory.
In the circumstances, I hereby grant the applicant's prayers No. 2 and 3 of the notice of motion.
However, the applicant will deposit the whole decretal amount in court within 30 days from today pending the hearing and determination of the intended appeal failing which the orders made herein and the application will be set aside.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this.....11th... day of NOVEMBER,..2015
In the presence of the presence of Ms Okwaro for applicant and in the absence of counsel for the respondent
Court clerk Mr Nyaga.
J.M. BWONWONGA
JUDGE
11. 11. 15