[2003] KEHC 199 (KLR)
The court found that the applicant's failure to file the appeal in time was due to the advocate's oversight, and such omission should not be visited upon the client. The court further held that the applicant had already deposited the decretal amount, which constituted a form of substantial loss if execution were to...
Source-derived case information.
- Citation
- [2003] KEHC 199 (KLR)
- Parties
- Applicant: Kenya Shield Security Limited; Respondent: Dismas Mauti Sangae; Respondent: Attorney General of Kenya; Respondent: Family Life Counselling Association of Kenya; Respondent: James Mundia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Judgment Date
- 23 May 2003
- Case Number
- Miscellaneous Civil Application 438 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Application allowed; leave to appeal out of time and stay of execution granted.
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Malicious Prosecution Damages
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Shield Security Limited
Applicant
Dismas Mauti Sangae
Respondent
Attorney General of Kenya
Respondent
Family Life Counselling Association of Kenya
Respondent
James Mundia
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 file an appeal out of time due to advocate's oversight.
- 2 Whether a stay of execution should be granted pending the intended appeal.
- 3 Whether the applicant has demonstrated substantial loss if stay is not granted.
Ratio Decidendi
The court found that the applicant's failure to file the appeal in time was due to the advocate's oversight, and such omission should not be visited upon the client. The court further held that the applicant had already deposited the decretal amount, which constituted a form of substantial loss if execution were to proceed. The court was satisfied that the intended appeal was not frivolous and that the interests of justice required granting leave to appeal out of time and a stay of execution. Accordingly, the court granted leave to file the appeal within 14 days and ordered a stay of execution, with no order as to costs.
Court Disposition
Application allowed; leave to appeal out of time and stay of execution granted.
Orders
- Leave to file and serve appeal within 14 days granted.
- Stay of execution pending appeal granted.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC. CIVIL APPLICATION NO. 438 OF 2003
KENYA SHIELD SECURITY LIMITED ……..............…….……..……..PLAINTIFF
V E R S U S
DISMAS MAUTI SANGAE ……………...…….............………..1ST DEFENDANT
ATTORNEY GENERAL OF KENYA ……………….............…..2ND DEFENDANT
FAMILY LIFE CONSELLING ASSOCIATION OF KENYA.......3RD DEFENDANT
JAMES MUNDIA …….………………………………..........……4TH DEFENDANT
R U L I N G
The application by way of Notice of Motion dated 28. 4.2003 seeks temporary stay of execution pending interpartes hearing of the application and leave to file appeal out of time. The Applicant intends to appeal against Mrs Omondi, Senior Resident Magistrate’s judgement of 24. 1.2003. The Magistrate awarded Kshs.153,389/- in damages for malicious prosecution and the Applicant feels aggrieved. However, he was late in filing memorandum of appeal due to over sight of advocate.
On 17. 4.2003, proclamation of attachment was executed. Mr. Nyakyangane for the Respondent opposes this application relying on his own affidavit saying there is no appeal already filed, the Applicant has not shown any substantial loss that would accrue if execution is carried out.
I have heard both counsels and read the affidavits. It is in the case admitted by the applicant that the advocate omitted to file the appeal in time. It is generally accepted that subject to certain factors, the omission or negligence of an advocate should not be met in the client. I feel therefore, that leave should be granted.
As for stay, the rule of application is that the Applicant should show that there would be substantial loss if stay is not granted. Substantial loss exists in various forms so in this case, I see that the Applicant having already deposited the decretal amount, has already removed the said amount from his use and to me, that is a loss if in addition the execution is imposed.
Platt J.A. said in SHELL OIL CO. LIMITED vs. KABIRU (1981-82) I KLR that substantial loss exists in various forms. I have further looked at the proposed grounds of appeal and I am satisfied that the appeal is not frivolous. The principle is that appellant if successful should not have the result of his appeal rendered nugatory.
For these reasons, I grant leave and order that appeal be filed and served in 14 days and further that there be stay.
No order as to costs.
DATED at Nairobi this 23rd day of May 2003
A.I. HAYANGA
JUDGE
Read to Mr. Nyandieka for Respondent
No appearance for Respondent.
23. 5.2003