[2016] KEHC 740 (KLR)
The court found that the applicants failed to respond to the respondent's affidavit of service, which alleged and evidenced that the applicants had been properly served with the court papers in the lower court proceedings. In the absence of any rebuttal or challenge to the affidavit of service, the court accepted...
Source-derived case information.
- Citation
- [2016] KEHC 740 (KLR)
- Parties
- Applicant: K M B; Applicant: T S; Respondent: Joseph Muthaa King'ori; Respondent: Moran Auctioneers; Interested Party: Catherine Wairimu Nderitu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 189 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application dismissed with costs to the 1st respondent; stay order set aside
- Judges
- DN Musyoka, REA Ougo
- Legal Topics
- Leave to Appeal Out of Time, Service of Process, Stay of Execution
- 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
K M B
Applicant
T S
Applicant
Joseph Muthaa King'ori
Respondent
Moran Auctioneers
Respondent
Catherine Wairimu Nderitu
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicants should be granted leave to file an appeal out of time against the lower court's decree.
- 2 Whether there was proper service of court papers on the applicants in the lower court proceedings.
- 3 Whether a stay of execution of the decree should be granted pending appeal.
Ratio Decidendi
The court found that the applicants failed to respond to the respondent's affidavit of service, which alleged and evidenced that the applicants had been properly served with the court papers in the lower court proceedings. In the absence of any rebuttal or challenge to the affidavit of service, the court accepted that service was properly effected. Consequently, the applicants did not demonstrate sufficient cause for the delay in filing the appeal or for the grant of a stay of execution. The application for leave to appeal out of time and for stay of execution was therefore dismissed as lacking foundation.
Court Disposition
application dismissed with costs to the 1st respondent; stay order set aside
Orders
- The application dated 19th November 2014 is dismissed with costs to the 1st respondent.
- The order made on 21st November 2014 staying the decree is set aside.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANEOUS CIVIL APPLICATION NO. 189 OF 2014
K M B………………………………………………1ST APPLICANT
T S………………..……………………..…........….2ND APPLICANT
-VERSUS-
JOSEPH MUTHAA KING’ORI….........................1ST RESPONDENT
MORAN AUCTIONEERS………………………2ND RESPONDENT
AND
CATHERINE WAIRIMU NDERITU….…….....INTERESTED PARTY
RULING
1. The Motion dated 19th November 2014 seeks grant of leave to the applicants to file appeal out of time in respect of a decree made by the lower court in Milimani Commercial Court CMCDC No. 347 of 2011 on 14th June 2012, and stay of recovery of the sums ordered by the said court pending appeal. The applicants proceed on the grounds that they were not served with the court papers in CMCDC No. 347 of 2011 hence they did not have the opportunity to defend the suit.
2. The application is responded to by the first respondent. He asserts that the divorce papers were properly served on the applicants. He has exhibited copy of an affidavit of service sworn on 20th September 2011 as proof thereof. There is no evidence that the said replying affidavit has been responded to.
3. I gave directions on 12th May 2016 that the application would be disposed of by way of written submissions. Both parties have complied and filed their respective written submissions. I have perused through the same, together with the authorities cited. I have noted the authorities cited.
4. The first respondent has exhibited an affidavit of service where it is alleged that the applicants had been served. The applicants did not respondent to the allegations made in the replying affidavit to the effect that they had been properly served with the divorce papers, and that they chose to ignore them. In the face of such facts I do not see the basis upon which I can grant the orders sought herein.
5. Consequently, I find that the application before me dated 19th November 2014 is without foundation and I do hereby dismiss it with costs to the 1st respondent. The order made on 21st November 2014 staying the decree is hereby set aside.
DATED and SIGNED at NAIROBI this 16TH DAY OF DECEMBER, 2016.
W. MUSYOKA
JUDGE
DELIVERED and SIGNED this 20TH DAY OF DECEMBER, 2016.
R. OUGO
JUDGE