[2024] KEHC 9232 (KLR)
The court found that the delay in filing the notice of appeal was satisfactorily explained by the applicant, citing file transmission and change of advocates, and that the delay was not inordinate. The court held that it could not validate an invalid notice of appeal but granted leave to file a fresh notice within...
Source-derived case information.
- Citation
- [2024] KEHC 9232 (KLR)
- Parties
- Applicant: Ann Wangari Karimi & Philip King'ori Ndiritu (Suing as legal representatives of the Estate of David Kiere Ndiritu - Deceased); Respondent: Joseph Kabugi King’Ori
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E004 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application for Leave to Appeal Out of Time and Stay Pending Appeal
- Outcome
- Application allowed.
- Judges
- DKN Magare
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Security for Appeal, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ann Wangari Karimi & Philip King'ori Ndiritu (Suing as legal representatives of the Estate of David Kiere Ndiritu - Deceased)
Applicant
Joseph Kabugi King’Ori
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Leave to Appeal Out of Time and Stay Pending Appeal
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time.
- 2 Whether stay of execution pending appeal should be granted and on what terms.
Ratio Decidendi
The court found that the delay in filing the notice of appeal was satisfactorily explained by the applicant, citing file transmission and change of advocates, and that the delay was not inordinate. The court held that it could not validate an invalid notice of appeal but granted leave to file a fresh notice within 14 days. On the issue of stay, the court applied Order 42 Rule 6, noting that the respondent conceded to the application, which amounted to an admission of potential loss, and that the applicant had offered security. The court therefore granted stay of execution pending appeal, conditional upon the applicant depositing the specified sum as security in a joint interest earning...
Court Disposition
Application allowed.
Orders
- Leave is granted to the applicant to appeal to the Court of Appeal out of time; notice of appeal to be filed within 14 days.
- Stay of execution pending appeal is granted on condition that the applicant deposits Kshs. 2,528,560 in a joint interest earning account by 30/8/2024 as security; in default, execution to issue.
Full Case Text
Judgment text and source record
23 paragraphs
Karimi & another (Suing as legal representatives of the Estate of David Kiere Ndiritu - Deceased) v King’ori (Civil Appeal E004 of 2021) [2024] KEHC 9232 (KLR) (18 July 2024) (Ruling)
Neutral citation: [2024] KEHC 9232 (KLR)
Republic of Kenya
In the High Court at Nyeri
Civil Appeal E004 of 2021
DKN Magare, J
July 18, 2024
Between
Ann Wangari Karimi & Philip King'ori Ndiritu (Suing as legal representatives of the Estate of David Kiere Ndiritu - Deceased)
Applicant
and
Joseph Kabugi King’Ori
Respondent
Ruling
1. The application seeks leave to appeal out of time and stay pending appeal. The application is not opposed. The court has to consider the application on its merit nevertheless.
2. The Notice of Appeal was filed out of time. It is sought to validate the same. Court has powers to grant leave to file an appeal out of time. However there must be:-a.Explanation for the delay.b.Delay is not inordinate.
3. In this case the delay was not inordinate. The file was transmitted from Mombasa, where the court was sitting. There is a likelihood of some delays. This is so in this case where there was a change of advocates. I am satisfied with the explanation given.
4. However, I cannot validate an invalid notice. I therefore direct that a Notice of Appeal be filed within 14 days from today.
5. Secondly Order 42 Rule 6 requires that the following conditions be met before stay is granted:i.Securityii.Irreparable loss.
6. In this case, the Respondent has already conceded. Therefore, it is an admission of loss. The Applicant has offered security.
7. In the circumstances I allow the application for stay pending appeal.
Determinationa. Leave is granted to the Respondent to appeal to the Court of Appeal out of time. The Respondent/Applicant to file Notice of Appeal within 14 days from today.b. There be stay of execution pending appeal on condition that the Respondent/Applicant deposits in a joint interest earning account by 30/8/2024 a sum of Kshs. 2,528,560/= as security. In default of so doing execution do issue.c. The file is closed.
DELIVERED, DATED AND SIGNED AT NYERI ON THIS 18TH DAY OF JULY, 2024. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Miss. Abodo for the Respondent/ApplicantMs. Onyango for the Appellant/RespondentCourt Assistant – Jedidah