[2024] KEHC 16237 (KLR)
The court found that the delay in filing the appeal was not inordinate and was reasonably explained by the applicants. The right of appeal is a constitutional right and should not be denied on technical grounds unless there is clear abuse of process. Although a similar application was filed in the lower court by a...
Source-derived case information.
- Citation
- [2024] KEHC 16237 (KLR)
- Parties
- Applicant: Isaac Kiragu Mwangi; Applicant: Joseph Muinde; Respondent: George Gitau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case E825 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay Pending Appeal and Leave to Appeal Out of Time
- Outcome
- Application allowed in part; leave to appeal out of time and stay of execution granted on conditions; costs to respondent.
- Judges
- LP Kassan
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Right of Appeal, Enlargement of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Kiragu Mwangi
Applicant
Joseph Muinde
Applicant
George Gitau
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay Pending Appeal and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have provided sufficient reason for delay in filing the appeal out of time.
- 2 Whether the applicants are entitled to stay of execution pending appeal.
- 3 Whether the applicants should be penalized for filing similar applications in different courts through different advocates.
Ratio Decidendi
The court found that the delay in filing the appeal was not inordinate and was reasonably explained by the applicants. The right of appeal is a constitutional right and should not be denied on technical grounds unless there is clear abuse of process. Although a similar application was filed in the lower court by a different advocate, there was no evidence of collusion or deliberate abuse, and the applicants' conduct was attributed to desperation or lack of legal knowledge. The court held that the interests of justice required balancing the applicants' right to appeal with the respondent's right to enjoy the fruits of judgment. To achieve this, the court granted leave to appeal out of time...
Court Disposition
Application allowed in part; leave to appeal out of time and stay of execution granted on conditions; costs to respondent.
Orders
- Time for filing appeal is enlarged.
- Stay of execution of judgment granted on condition that applicants deposit half the decretal amount with the respondent's advocate and the balance in a joint interest-earning account in the names of both advocates within 30 days.
Full Case Text
Judgment text and source record
20 paragraphs
Mwangi & another v Gitau (Miscellaneous Case E825 of 2024) [2024] KEHC 16237 (KLR) (19 December 2024) (Ruling)
Neutral citation: [2024] KEHC 16237 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Miscellaneous Case E825 of 2024
LP Kassan, J
December 19, 2024
Between
Isaac Kiragu Mwangi
1st Applicant
Joseph Muinde
2nd Applicant
and
George Gitau
Respondent
Ruling
1. This is an Application for stay pending appeal and leave to appeal out of time. I have read the submissions, affidavits and authorities. In order to dispose off this appeal, I wish to note the following;1. The impugned Judgement was entered on 8th July 2024. This Application was filed on 10th September 2024 - around three months after Judgement assuming that no stay was granted at entry of Judgement which is unlikely. Sometimes a decision to appeal comes after the expiry of the period in which an appeal must be launched. This is because circumstances change and it is human nature that people make decisions at different times. The law must accommodate every one and not only those who are perfect by looking at the reasons for delay and the period. These timelines are not cast in stone. There are instances, not necessarily in this case, where litigants are comfortable with judgments because they could be expecting some payments which fail at the last minute. This delay appears reasonable.2. The Right of Appeal.This is a constitutional right and cannot be infringed. This right exists as manifested by hierarchy of Courts in Kenya. Unless there are exceptional circumstances such as and not limited to an abuse of court process, it is rare for this right to be ignored.3. Similar Application Lower Court.I note that a similar Application was filed at the Lower Court by a different advocate. This should not happen. Nevertheless, there is no evidence that both advocates knew that they were doing the same thing in different Courts. According to the replying affidavit dated 16/9/2024, it is averred that the Applicant intimated that it never gave consent to the firm of Kimondo to act on their behalf. Unfortunately, the said affidavit has only up to paragraph 5. In as much as this is not encouraged, the Court appreciates that sometimes litigants are so desperate or lack legal knowledge to the point of filling several Suits just to get orders or "Justice". Should they be punished by denying them prayers? This is a matter that must be considered carefully before any dismissal. The court must balance the fear of the “unknown” and ignorance with justice. You cannot throw the baby with bath water.4. Prejudice the rights to enjoy fruits of judgment. If this court was to allow enjoyment of fruits of judgment, and the appeal succeeds, the Appellant may suffer irreparably and so conditions must also followThe Respondent has a right to enjoy the fruits of his Judgement. The said Judgement is now six months old and at this juncture the Court must balance the right to Appeal and enjoyment of fruits of Judgement. To achieve this, the court must look at who is likely to be prejudiced and whether there will be a remedy. The right of appeal if given conditions will ameliorate5. Memorandum of AppealThe award was for Ksh 400,000/- and the injuries indicated as " Fracture to the left tibia malleolus." It is true that liability is not contested.
2. Taking into account the short period in which an appeal has been lodged, this Court is inclined to enlarge time of Appeal. Secondly, taking into account the nature of injuries suffered by the Plaintiff, I shall direct that the Applicant deposits half the decretal amount to the Respondent's advocate Account and the balance to a joint interest earning Account in the name of both advocates within 30 days from today failure to which stay of execution of the Judgement shall lapse.
3. The Applicant shall bear costs.Orders accordingly.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 19THDAY OF DECEMBER 2024. L. KASSANJUDGEIn the presence of:No appearance for ApplicantNambalu for the RespondentCarol - Court Assistant