[2024] KEHC 13998 (KLR)
The court found that the appellant failed to comply with the express conditions set for the stay of execution, namely depositing the decretal sum of Kshs 500,000 in a joint account and filing the record of appeal within the stipulated period. The explanation provided by the appellant's counsel regarding difficulties...
Source-derived case information.
- Citation
- [2024] KEHC 13998 (KLR)
- Parties
- Appellant: Agnes Nyambura Kamau; Respondent: Abraham Muthee Nyaringi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E213 of 2024
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal
- Outcome
- appeal dismissed with costs to the respondent
- Judges
- TW Ouya
- Legal Topics
- Dismissal for Non Compliance, Stay of Execution, Record of Appeal Filing, Decretal Sum Deposit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Nyambura Kamau
Appellant
Abraham Muthee Nyaringi
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Dismissal
Legal Issues
- 1 Whether the appellant has complied with the conditions for stay of execution as ordered by the court.
- 2 Whether the appellant has provided justifiable cause for failure to deposit the decretal sum and file the record of appeal.
- 3 Whether the appeal should be dismissed for non-compliance with court orders.
Ratio Decidendi
The court found that the appellant failed to comply with the express conditions set for the stay of execution, namely depositing the decretal sum of Kshs 500,000 in a joint account and filing the record of appeal within the stipulated period. The explanation provided by the appellant's counsel regarding difficulties in obtaining the decree was deemed unjustifiable, as the lower court file was available at the High Court Registry and the record of appeal could have been filed with the judgment appealed against, with supplementary documents to follow. The court held that there was no justifiable cause for the appellant's non-compliance and, accordingly, dismissed the appeal with costs to...
Court Disposition
appeal dismissed with costs to the respondent
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
Kamau v Nyaringi (Civil Appeal E213 of 2024) [2024] KEHC 13998 (KLR) (Civ) (11 November 2024) (Ruling)
Neutral citation: [2024] KEHC 13998 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts)
Civil
Civil Appeal E213 of 2024
TW Ouya, J
November 11, 2024
Between
Agnes Nyambura Kamau
Appellant
and
Abraham Muthee Nyaringi
Respondent
Ruling
1. This matter came up for Notice to show cause why the matter should not be dismissed today on 11th November 2024.
2. The subject application is Notice of motion application dated 22nd February 2024 by the Appellant which was brought under certificate of urgency together with a memorandum of Appeal dated 14th February and a prayer for stay of execution.
3. The application was compromised on 6th March 2024 before Hon. A. J Ongeri on the conditions that:i.Appellant to deposit the decretal sum of Kshs 500,000 in a joint account in the names of counsels for the parties within 45 days.ii.Appellant to file Records of Appeal within 45 days.
4. Counsel for the Appellant has submitted to court that they have had challenges obtaining the decree.
5. Counsel for the Respondent has submitted that the Appellant has failed to comply with the conditions of stay that were granted by court on 6th March 2024.
6. Counsel for Appellant has not demonstrated any justifiable reason why they have not complied by depositing the decretal sum in a joint interest earning account as was directed on 6/3/2024.
7. The explanation given by counsel about challenges in obtaining the decree is not justifiable because the lower court file has been available in the High Court Registry. Counsel could have filed the Record of Appeal together with the judgement appealed against. Any other documents could have been filed as supplementary Record of Appeal.
8. This matter was, mentioned before the Deputy registrar who forwarded the matter to this court for Notice to show cause Hearing.
9. Counsel for the Appellant has not demonstrated any justifiable cause why this appeal should continue to be retained.
10. Based on the above, I hereby order that this appeal be dismissed with costs to the Respondent.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 11TH DAY OF NOVEMBER, 2024ROA 14 days.HON. T. W. OuyaJUDGE11/11/2024For Appellant Mshindi H/B for WandakaFor Respondent Sirima holding H/B for MuzihyaCourt Assistant Martin