[2023] KEHC 26823 (KLR)
The court found that the appellants had demonstrated sufficient cause for their failure to deposit the decretal sum within the time previously ordered. The inability to trace the court file, which was necessary for the issuance of the invoice required to make the deposit, was a circumstance beyond the appellants'...
Source-derived case information.
- Citation
- [2023] KEHC 26823 (KLR)
- Parties
- Appellant: Luasi Nabutola; Appellant: Rebecca Mwikali Nabutola; Respondent: Mary Wambui Kinyanjui; Respondent: Wycliff Mwangi Kanyingi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E213 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Application for Extension of Time to Deposit Decretal Sum
- Outcome
- Application for extension of time allowed.
- Judges
- AN Ongeri
- Legal Topics
- Extension of Time, Decretal Sum Deposit, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Luasi Nabutola
Appellant
Rebecca Mwikali Nabutola
Appellant
Mary Wambui Kinyanjui
Respondent
Wycliff Mwangi Kanyingi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Extension of Time to Deposit Decretal Sum
Legal Issues
- 1 Whether the appellants should be granted an extension of time to deposit the balance of the decretal sum as previously ordered by the court.
- 2 Whether the delay in depositing the decretal sum was excusable due to the unavailability of the court file.
Ratio Decidendi
The court found that the appellants had demonstrated sufficient cause for their failure to deposit the decretal sum within the time previously ordered. The inability to trace the court file, which was necessary for the issuance of the invoice required to make the deposit, was a circumstance beyond the appellants' control. The court exercised its discretion to grant a further extension of 30 days for the deposit of the decretal sum, and directed that the appeal be prosecuted within 90 days, failing which the appeal would stand dismissed with costs to the respondents. The costs of the application were ordered to abide the outcome of the appeal.
Court Disposition
Application for extension of time allowed.
Orders
- The balance of the decretal sum is to be deposited in court within 30 days of the ruling date.
- The appeal is to be prosecuted within 90 days of the ruling date, failing which the appeal shall stand dismissed automatically with costs to the respondents.
Full Case Text
Judgment text and source record
31 paragraphs
Nabutola & another v Kinyanjui & another (Civil Appeal E213 of 2022) [2023] KEHC 26823 (KLR) (Civ) (22 December 2023) (Ruling)
Neutral citation: [2023] KEHC 26823 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal E213 of 2022
AN Ongeri, J
December 22, 2023
Between
Luasi Nabutola
1st Appellant
Rebecca Mwikali Nabutola
2nd Appellant
and
Mary Wambui Kinyanjui
1st Respondent
Wycliff Mwangi Kanyingi
2nd Respondent
Ruling
1. The application coming for consideration in this ruling is the one dated 30/8/2023 seeking extension of time to deposit the decretal sum by 45 days.
2. The application is based on the grounds that the applicant was unable to deposit the balance of the decretal sum due to unavailability of the file.
3. That on 12th July 2023 the court ordered the appellants to deposit the balance of decretal amount kshs.1,202,308. 00 in court.
4. That we wrote the letter dated 14th July, 2023 to the Deputy Registrar invoice requesting for the invoice of ksh.1,202,308. 00 and filed the letter on the E filing portal on the 17th July, 2023.
5. That our representative visited the registry to get the invoice, but he was told that the court file which has a mention dated of 26th September, 2023 could not be traced.
6. That our representative has been in the registry several times to trace the physical file to enable the invoicing staff issue the invoice since he was told that the invoice can only be issued once the physical file is available in vain.
7. That our representative was only able to trace the court file on the 29th August, 2023 and upon asking for the invoice, the invoicing staff indicated to him that he could not issue the same since the 45 days given by the court had since expired and was past 2 days.
8. That our client who was to deposit the said amount encountered challenges depositing the amount due to unavailability of the invoice occasioned by the untraceable court file.
9. That we seek leave to the court to further extend the 45 days granted to deposit the balance of the decretal sum of kshs.1,202,308. 00The costs of this application to abide the outcome of the appeal.
10. The respondent did not file submissions as directed.
11. I allow the application dated 30/8/2023 on the following grounds;i.That the balance of the decretal sum is deposited in court within 30 days of this date.ii.That the appeal is prosecuted within 90 days of this date failure to which the appeal is dismissed automatically with costs to the respondents.iii.The costs of the application to abide the appeal.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 22ND DAY OF DECEMBER, 2023. ..................A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent