[2018] KEHC 2391 (KLR)
The court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, namely the late receipt of instructions from the Insurance Company. The court also noted that liability in the lower court was settled by consent, and the only issue on appeal would be quantum. In balancing...
Source-derived case information.
- Citation
- [2018] KEHC 2391 (KLR)
- Parties
- Applicant: Kennedy Kifunya Kalaha; Respondent: Beatrice Bugutsa Makati; Respondent: Jack Wanjala Khisa (Suing as the administrator of the Estate of Brian Namasake Wakhisi – Deceased)
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 8 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Application allowed in part.
- Judges
- SN Riechi
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Kifunya Kalaha
Applicant
Beatrice Bugutsa Makati
Respondent
Jack Wanjala Khisa (Suing as the administrator of the Estate of Brian Namasake Wakhisi – Deceased)
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 should be granted leave to appeal out of time against the judgment in Bungoma CMCC 559/2016.
- 2 Whether a stay of execution of the decree should be granted pending the hearing and determination of the intended appeal.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, namely the late receipt of instructions from the Insurance Company. The court also noted that liability in the lower court was settled by consent, and the only issue on appeal would be quantum. In balancing the interests of both parties, the court granted leave to appeal out of time and ordered a stay of execution on condition that the applicant deposits the entire decretal sum in a joint interest-earning account. This approach ensures that the respondent's interests are protected while allowing the applicant to exercise the right of appeal.
Court Disposition
Application allowed in part.
Orders
- Leave to appeal out of time is granted to the applicant.
- Applicant to file appeal within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
MISC CIVIL APPLICATION NO. 8 OF 2018.
KENNEDY KIFUNYA KALAHA........................................APPLICANT
VERSUS.
BEATRICE BUGUTSA MAKATI
JACK WANJALA KHISA (Suing as the administrators of the
Estate of BRIAN NAMASAKE WAKHISI – Deceased.....RESPONDENTS
RULING.
This is application dated 12. 3.2018 seeking mainly 2 prayers (a) Stay of execution of the decree in Bungoma CMCC No. 559/2016 pending the filing, hearing and determination of the appeal. (b) Leave to appeal out of time against the Judgment in Bungoma CMCC 559/2016.
The grounds are that the applicant received instructions late from the Insurance Company and only did so on 9. 3.2018; that the delay is excusable and that the appeal has high chances of success. The Respondent in his response submits that no sufficient grounds have been advanced to grant the prayers sought; that the Respondent has a right to enjoy the fruits of his judgment and finally that the appeal does not have any chances of success.
I have carefully considered the application and submissions of the Counsel. I also note that liability in the lower court was by consent and the only issue in that appeal would be on quantum. I consequently make the following orders;
1. That leave to appeal out of time by the applicant is hereby granted.
2. Applicant to file appeal within 30 days from todays date.
3. That the Appellant do deposit all the decretal amount of Kshs.1,343,772/= in an interest earning account in the names of both Counsel for applicant and Respondent within 30 days.
4. Upon fulfilment of No. 3 above, there be stay of execution until the appeal is heard and finalized. In default execute the process.
5. Costs be in the cause.
Dated and Delivered at Bungoma on this 7th day of November, 2018.
S.N. RIECHI
JUDGE