[2025] KEHC 9418 (KLR)

[2025] KEHC 9418 (KLR)

The court found that the applicant had provided a satisfactory explanation for the delay in filing the appeal, namely the freezing of the insurer's accounts and the resultant inability to give instructions for the appeal. There was no evidence to the contrary from the respondent. Consequently, the court exercised its discretion to grant leave to appeal out of time, directing the applicant to file and serve the appeal within 14 days. However, the court held that the application for stay of execution was premature because, under Order 42, a stay can only be granted where an appeal has already been filed. Since no appeal was yet on record, there was no legal basis to grant a stay at this...

Citation
[2025] KEHC 9418 (KLR)
Parties
Applicant: Thomas Morara; Respondent: Joseph Mwanza Muinduko
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
27 June 2025
Case Number
Miscellaneous Civil Application E365 of 2024
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; application for stay of execution dismissed as premature.
Judges
J Ngaah
Legal Topics
Leave to Appeal Out of Time, Stay of Execution, Delay in Filing Appeal, Security for Decretal Sum
Source Language
English
Civil Procedure Leave to Appeal Out of Time Stay of Execution Delay in Filing Appeal Security for Decretal Sum

Case Brief

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Parties

Thomas Morara

Applicant

Joseph Mwanza Muinduko

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution

Legal Issues

  1. 1 Whether the applicant has provided sufficient cause for delay in filing the appeal out of time.
  2. 2 Whether a stay of execution can be granted before an appeal is filed.
  3. 3 Whether security for the decretal sum should be ordered as a condition for stay.

Ratio Decidendi

The court found that the applicant had provided a satisfactory explanation for the delay in filing the appeal, namely the freezing of the insurer's accounts and the resultant inability to give instructions for the appeal. There was no evidence to the contrary from the respondent. Consequently, the court exercised its discretion to grant leave to appeal out of time, directing the applicant to file and serve the appeal within 14 days. However, the court held that the application for stay of execution was premature because, under Order 42, a stay can only be granted where an appeal has already been filed. Since no appeal was yet on record, there was no legal basis to grant a stay at this...

Court Disposition

Application allowed in part; leave to appeal out of time granted; application for stay of execution dismissed as premature.

Orders

  • The applicant is granted leave to file and serve the appeal within 14 days of the date of this ruling.
  • The application for stay of execution is dismissed as premature.