[2019] KEHC 8568 (KLR)
The court found that the applicants had sufficiently explained the delay in filing the memorandum of appeal, attributing it to the time taken to obtain proceedings from the lower court. The court recognized the applicants' right of appeal and the need to balance this against the respondent's right to enjoy the...
Source-derived case information.
- Citation
- [2019] KEHC 8568 (KLR)
- Parties
- Applicant: Mutalii Symon Ithiriri; Applicant: Kimathi Derrick; Respondent: Kaleb Jaoko
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 414 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Extension of Time to Appeal
- Outcome
- Application allowed with conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Extension of Time, Appeals Process, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutalii Symon Ithiriri
Applicant
Kimathi Derrick
Applicant
Kaleb Jaoko
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Extension of Time to Appeal
Legal Issues
- 1 Whether the applicants have demonstrated sufficient cause for extension of time to file a memorandum of appeal.
- 2 Whether the applicants are entitled to a stay of execution of the lower court judgment pending appeal.
- 3 What conditions should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the applicants had sufficiently explained the delay in filing the memorandum of appeal, attributing it to the time taken to obtain proceedings from the lower court. The court recognized the applicants' right of appeal and the need to balance this against the respondent's right to enjoy the fruits of judgment. The court held that no party should be penalized for systemic shortcomings of the judiciary, nor should any party take advantage of such shortcomings. Exercising its discretion judicially, the court granted an extension of time to file the memorandum of appeal and allowed a stay of execution of the lower court judgment, subject to the applicants paying part of...
Court Disposition
Application allowed with conditions.
Orders
- Extension of time to file the memorandum of appeal granted; to be filed within 14 days from the date of the ruling.
- Stay of execution of the lower court judgment granted, provided the applicants pay KES 1,000,000 to the respondent within 30 days and deposit the balance of the decretal sum in an interest-earning account in the joint names of both advocates within 30 days.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLENOUS APPLICATION NO. 414 OF 2014
MUTALII SYMON ITHIRIRI..........................1ST APPLICANT
KIMATHI DERRICK.......................................2ND APPLICANT
VERSUS
KALEB JAOKO...................................................RESPONDENT
RULING
This is an application by way of Notice of Motion under Sections 1A 3A 63 (e) and 79 G of the Civil Procedure Act and Order 42 rule 6 and 51 Rule 1 of the Civil Procedure rules for stay of execution of the lower court judgment. There is also a prayer for extension of time to file the Memorandum of Appeal. The reasons for seeking those orders are set out on the face of the application alongside an affidavit sworn by counsel for the applicants. The draft memorandum of appeal is also annexed to the application.
The application is opposed and grounds of opposition have been filed on behalf of the respondent. Parties have filed submissions which I have noted alongside the cited authorities. The orders sought are discretionary which discretion should be exercised judicially. The applicants have the right of appeal but on the other hand the respondent has the judgment in his favour out of which he desires to enjoy the fruits thereof.
Going by the draft Memorandum of Appeal, the thrust of the intended appeal relates to liability and what is said to be excessive award of damages both in terms of general and special damages. I know the principles applicable under order 42 Rule 6of the civil Procedure Rules. The judgment of the lower court was delivered on 8th May, 2018 and this application was filed on 31st July, 2018. Soon after the delivery of the judgment, on 18th May, 2018, counsel for the applicants addressed a letter to the Executive Officer of the lower court asking for proceedings.
That was a clear demonstration that the applicants intended to challenge the judgment of the lower court. As at the time of arguing this application the said proceedings had not been delivered. The delay in lodging the Memorandum of Appeal in time has been sufficiently explained. The court is supposed to balance the interest of both parties. No party can be penalised for systemic shortcoming of the institution of judiciary. Neither can any party take advantage of such short comings.
Doing the best that I can, I hereby allow the application to extend the time to file the Memorandum of Appeal which should be done within 14 days from the date of this ruling. I further allow the prayer for stay of execution of the lower court judgement provided that the applicants pay to the respondent a sum of Kshs. 1,000,000/= within 30 days from the date of this ruling and deposit the balance of the decretal sum in an interest earning account in the joint names of both advocates for the parties on record within the same period of 30 days. In default execution shall proceed. The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 15th Day of March , 2019.
A.MBOGHOLI MSAGHA
JUDGE