[2022] KEHC 12060 (KLR)
The court found that the applicant failed to particularise the court action to which the stay of execution or leave to appeal out of time related, rendering the application incompetent. Furthermore, the applicant did not provide evidence of having applied for proceedings or a certificate of delay, nor did he offer...
Source-derived case information.
- Citation
- [2022] KEHC 12060 (KLR)
- Parties
- Applicant: Michael Kamau Kang’ethe; Respondent: Silas Nkunga
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E139 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application dismissed with costs
- Judges
- MM Kasango
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Consent Orders, Ex Parte Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Kamau Kang’ethe
Applicant
Silas Nkunga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the consent order dated November 14, 2019.
- 2 Whether the applicant should be granted leave to file an appeal out of time against the ruling of March 31, 2021.
Ratio Decidendi
The court found that the applicant failed to particularise the court action to which the stay of execution or leave to appeal out of time related, rendering the application incompetent. Furthermore, the applicant did not provide evidence of having applied for proceedings or a certificate of delay, nor did he offer any explanation for the delay in filing the application, which exceeded the statutory 30-day period. The court held that the delay was inordinate and unexplained, and therefore, the applicant did not satisfy the requirements of section 79G of the Civil Procedure Act for admission of an appeal out of time. Consequently, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated June 25, 2021 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
Kang’ethe v Nkunga (Miscellaneous Application E139 of 2021) [2022] KEHC 12060 (KLR) (16 June 2022) (Ruling)
Neutral citation: [2022] KEHC 12060 (KLR)
Republic of Kenya
In the High Court at Kiambu
Miscellaneous Application E139 of 2021
MM Kasango, J
June 16, 2022
Between
Michael Kamau Kang’ethe
Applicant
and
Silas Nkunga
Respondent
Ruling
1. Michael Kamau Kangethe (Michael) has presented this miscellaneous application seeking stay of execution of the consent order dated November 14, 2019. There is no indication in that prayer what court that consent was filed which is sought to be stayed.
2. The second prayer presented by Michael is for leave to file an appeal out of time. Yet again, there is no indication which judgment or ruling or order is sought to be stayed. Out rightly, it will be seen that the application in as far as the prayers are concerned is incompetent for lack of particularisation of the court action to which stay of execution is sought or leave to file an appeal out of time.
3. In the affidavit sworn by Michael’s advocate, it is stated that the respondent, Silas Nkunga (Silas) obtained ex parte judgment against Michael “in Civil Suit 1050 of 2016”. It will be noted again Michael does not state in which court the civil suit was filed.
4. The affidavit sworn on behalf of Michael reveals that Michael was arrested and imprisoned in the civil jail for non-payment of a debt. On November 14, 2019, he entered into a consent with Silas where he undertook to repay that debt. He applied before the Thika chief magistrate’s court to set aside the ex parte judgment. That prayer by a ruling of March 31, 2021 was dismissed. That being aggrieved of that dismissal, Michael applied for the proceedings and ruling. There is no evidence of such an application for proceedings or ruling. Michael then stated that the Thika magistrate’s court supplied him with certificate of delay certifying delay in provision of the proceedings. There is no such certificate provided to this court.
5. It follows that the delay to file the appeal was from March 31, 2021 to June 25, 2021 when this present application was filed. That period is more than the 30 days provided for under section 79G of the Civil Procedure Act, which provides:-“79G. Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order.Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.” (underlining mine)
6. That delay was not explained. Since it was inordinate delay and because of lack of explanation the application dated June 25, 2021 must and does fail.
7. It is dismissed with costs.
RULING DATED and DELIVERED at KIAMBU this 16th day of JUNE, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceFor 1st Applicant : - Mr. NjorogeFor Respondent:- Ms. KinyuaRULING delivered virtually.MARY KASANGOJUDGE