[2024] KEHC 6915 (KLR)
The court found that the applicant was not a party to the original proceedings and there was no evidence she had been served with the order for execution. Given that the suit land was registered in her name at the time of the order, and considering the principle of audi alteram partem, the court held that it would...
Source-derived case information.
- Citation
- [2024] KEHC 6915 (KLR)
- Parties
- Applicant: Ann Gathigia Kariuki; Respondent: Serah Njeri Watatua; Respondent: Eunice Wanjiku Mwangi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E070 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- Application allowed in part; leave to appeal out of time granted; limited stay of execution granted subject to conditions.
- Judges
- DKN Magare
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Audi Alteram Partem, Service of Orders, Security for Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ann Gathigia Kariuki
Applicant
Serah Njeri Watatua
Respondent
Eunice Wanjiku Mwangi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant, who was not a party to the original suit, should be granted leave to appeal out of time.
- 2 Whether stay of execution should be granted in respect of Land Parcel No. Nyeri/Waraza/1485 pending appeal.
- 3 Whether the applicant was properly served with the order for execution.
Ratio Decidendi
The court found that the applicant was not a party to the original proceedings and there was no evidence she had been served with the order for execution. Given that the suit land was registered in her name at the time of the order, and considering the principle of audi alteram partem, the court held that it would be unjust to deny her an opportunity to appeal. The delay, though long, was excusable in the absence of service. The court granted leave to appeal out of time and ordered a limited stay of execution regarding Land Parcel No. Nyeri/Waraza/1485, conditional upon the deposit of the original title deed as security. The remainder of the decree could be executed. Costs were reserved...
Court Disposition
Application allowed in part; leave to appeal out of time granted; limited stay of execution granted subject to conditions.
Orders
- Leave granted to the applicant to file appeal out of time; Memorandum of Appeal to be filed by 25/6/2024.
- Stay of sale of Land Parcel No. Nyeri/Waraza/1485 pending hearing and determination of the appeal, conditional on deposit of original title deed by 10/7/2024 at 3:30 pm.
Full Case Text
Judgment text and source record
23 paragraphs
Kariuki v Watatua & another (Miscellaneous Civil Application E070 of 2023) [2024] KEHC 6915 (KLR) (10 June 2024) (Ruling)
Neutral citation: [2024] KEHC 6915 (KLR)
Republic of Kenya
In the High Court at Nyeri
Miscellaneous Civil Application E070 of 2023
DKN Magare, J
June 10, 2024
Between
Ann Gathigia Kariuki
Applicant
and
Serah Njeri Watatua
1st Respondent
Eunice Wanjiku Mwangi
2nd Respondent
Ruling
1. This is an application dated 18/12/2023 for leave to appeal out of time. The Applicant was not party to the suit in the court below. The application for leave to execute sought an order against the Applicant.
2. At the time of issuance of the order, the suit land was registered in the Applicant’s name. It is not known how the transfer occurred but there is a transfer. The question the court will deal with is an issue of Audi alteram partem. The Appeal is not idle. This is more so when the party against whom execution was sought was not heard.
3. The delay in the application is long. However, there is no evidence that the Applicant was served with the order, being a non party. Consequently, I find the application merited and allow the same. The Applicant shall file Memorandum of Appeal within 10 days of this order.
4. The court may not grant stay of the entire Decree as the dispute relates only to the sale of Land Parcel No. LR. Nyeri/Waraza/1485. Consequently, there will be stay of execution limited only to Land Parcel No. LR. Nyeri/Waraza/1485 pending hearing of the intended appeal.
5. Order 42 Rule 6 requires that there be security for the appeal. Consequently, there is no better security than the title deed itself. I therefore direct that the original title deed be deposited in court by 3. 30 pm on 10/7/2024, failing which stay shall lapse. Costs will be in the intended appeal.
Determination 6. The upshot of the foregoing is that I make the following orders:a.Leave be granted to the Applicant to file appeal out of time. The Memorandum of Appeal should be filed by 25/6/2024. b.There be stay of sale of Land Parcel No. Nyeri/Waraza/1485 pending hearing and determination of the Appeal herein on condition that the original title deed be deposited in court by 10/7/2024 at 3. 30 pm, failing which stay granted shall lapse.c.For avoidance of doubt, there is no stay in regard to the remainder of the Decree in CMCC No. 42 of 2020. The Decree Holder can proceed with execution other than Land Parcel No. Nyeri/Waraza/1845. d.Costs in the intended appeal.e.This file is closed.
DELIVERED, DATED AND SIGNED AT NYERI ON THIS 10TH DAY OF JUNE, 2024. KIZITO MAGAREJUDGEIn the presence of:-Mr. Ng’ang’a for the 1st RespondentNo appearance for the ApplicantCourt Assistant – Jedidah