[2025] KEELC 3648 (KLR)

[2025] KEELC 3648 (KLR)

The court found that the delay of close to three months in filing the application for leave to appeal out of time was not inordinate and had been sufficiently explained by the applicant. The applicant's explanation that he learned of the judgment late and made efforts to obtain a copy was accepted. The respondent would not suffer prejudice if leave was granted, as he would have an opportunity to defend the appeal. The draft memorandum of appeal raised arguable points. The court exercised its discretion to grant the applicant leave to file an appeal out of time and granted a stay of execution of the Magistrate’s Court judgment, subject to the applicant depositing Kshs 20,000 in court as...

Citation
[2025] KEELC 3648 (KLR)
Parties
Applicant: Michael Mwanzia Kitheka; Respondent: James Mukundi Githucha
Court
Environment and Land Court
Court Station
Environment and Land Court at Embu
Jurisdiction
Kenya
Judgment Date
30 April 2025
Case Number
Miscellaneous Application E016 of 2024
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time and Stay of Execution
Outcome
Application allowed with conditions.
Judges
AK Bor
Legal Topics
Extension of Time, Stay of Execution, Appeals From Subordinate Courts, Homestead Eviction, Security for Due Performance
Source Language
English
Civil Procedure Land and Property Extension of Time Stay of Execution Appeals From Subordinate Courts Homestead Eviction Security for Due Performance

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Parties

Michael Mwanzia Kitheka

Applicant

James Mukundi Githucha

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application for Extension of Time and Stay of Execution

Legal Issues

  1. 1 Whether the applicant is entitled to enlargement of time to file an appeal out of time.
  2. 2 Whether the applicant is entitled to orders of stay of execution pending appeal.

Ratio Decidendi

The court found that the delay of close to three months in filing the application for leave to appeal out of time was not inordinate and had been sufficiently explained by the applicant. The applicant's explanation that he learned of the judgment late and made efforts to obtain a copy was accepted. The respondent would not suffer prejudice if leave was granted, as he would have an opportunity to defend the appeal. The draft memorandum of appeal raised arguable points. The court exercised its discretion to grant the applicant leave to file an appeal out of time and granted a stay of execution of the Magistrate’s Court judgment, subject to the applicant depositing Kshs 20,000 in court as...

Court Disposition

Application allowed with conditions.

Orders

  • Leave is granted to the applicant to file an appeal out of time.
  • Stay of execution of the Magistrate’s Court judgment delivered on 21/3/2024 is granted, subject to the applicant depositing Kshs 20,000 in court as security for due performance of the decree within 21 days.