[2022] KEHC 13861 (KLR)
The court found that although the explanation for the delay in filing the appeal was flimsy, the delay of six days was not inordinate. In the interest of justice and the fundamental right to access the appellate process, the court exercised its discretion to extend the time for filing the appeal. The court also...
Source-derived case information.
- Citation
- [2022] KEHC 13861 (KLR)
- Parties
- Appellant: Stephen Wesonga Makokha; Appellant: Moses Adepa; Respondent: Gnatious Opema Maliba (Suing as Legal Representative of the Estate of Antony Gisiye (Deceased))
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E062 of 2021
- Procedural Posture
- Miscellaneous Civil Application / Ruling on Extension of Time and Stay Pending Appeal
- Outcome
- Application for extension of time and stay of execution allowed with conditions.
- Judges
- PJO Otieno
- Legal Topics
- Extension of Time, Stay of Execution, Appeal Admission
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Wesonga Makokha
Appellant
Moses Adepa
Appellant
Gnatious Opema Maliba (Suing as Legal Representative of the Estate of Antony Gisiye (Deceased))
Respondent
Procedural Posture
Miscellaneous Civil Application / Ruling on Extension of Time and Stay Pending Appeal
Legal Issues
- 1 Whether the delay in filing the appeal warranted extension of time.
- 2 Whether the applicants were entitled to a stay of execution pending appeal.
- 3 What conditions should attach to the grant of stay and extension of time.
Ratio Decidendi
The court found that although the explanation for the delay in filing the appeal was flimsy, the delay of six days was not inordinate. In the interest of justice and the fundamental right to access the appellate process, the court exercised its discretion to extend the time for filing the appeal. The court also extended the time for compliance with the order for deposit of the decretal sum by twenty-one days. The appeal was admitted to hearing and directions were given for the filing and service of records and submissions. The court emphasized that time was of the essence and non-compliance with the set timelines would result in the lifting of the stay and dismissal of the appeal.
Court Disposition
Application for extension of time and stay of execution allowed with conditions.
Orders
- Time for filing the appeal is extended; appeal deemed duly filed.
- Time to comply with the order for deposit of the decretal sum is extended by 21 days from the date of the ruling.
Full Case Text
Judgment text and source record
26 paragraphs
Makokha & another v Maliba ((Suing as Legal Representative of the Estate of Antony Gisiye (Deceased)) (Miscellaneous Civil Application E062 of 2021) [2022] KEHC 13861 (KLR) (6 October 2022) (Ruling)
Neutral citation: [2022] KEHC 13861 (KLR)
Republic of Kenya
In the High Court at Kakamega
Miscellaneous Civil Application E062 of 2021
PJO Otieno, J
October 6, 2022
Between
Stephen Wesonga Makokha
1st Appellant
Moses Adepa
2nd Appellant
and
Gnatious Opema Maliba
Respondent
(Suing as Legal Representative of the Estate of Antony Gisiye (Deceased)
Ruling
1. The delay and failure to file the appeal by the 13th of February 2022 has been blamed on change of Advocates without more. The Court deems that flimsy but however takes the view that the right to access justice, even by way of an appeal, is fundamental and deserves enjoyment by the applicant here.
2. In coming to that conclusion, I have equally appreciated that the delay for a period of some six (6) days is not inordinate. I do extend time and deem the appeal, Kakamega HCCA. No. 10 of 2022, duly filed.
3. On stay, and its terms, I equally extend the time to comply with the order for deposit of the decretal sum by a period of twenty one (21) days from today.
4. To progress the appeal, it is directed as follows:-(i)The record as well as submissions be filed and served by the Appellants within thirty (30) days from today to enable the Respondent also file and serve own submissions within thirty (30) days after service.(ii)The appeal is therefore admitted to hearing and shall be canvassed by way of written submissions.
5. Time is of essence and any default to so comply with any of the conditions above will result in the orders of stay being disclosed and the appeal itself being dismissed.
6. Mention on 8. 12. 2022 for further orders.
7. Let this file be placed together with the Appeal No. 10/2020 at all times.
8. These directions be extracted by Mr. Oduor and served upon the Respondent within seven (7) days.
DATED, SIGNED AND DELIVERED IN KAKAMEGA THIS 6TH DAY OF OCTOBER 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Oduor for the ApplicantNo appearance for Ms. Makali for the RespondentCourt Assistant: Polycap Mukabwa