[2017] KEHC 6806 (KLR)
The court found that the applicants were not notified of the delivery of the lower court judgment, a fact not disputed by the respondent. This justified granting leave to file the appeal out of time. On the issue of stay, the court balanced the respondent's right to enjoy the fruits of judgment with the applicants'...
Source-derived case information.
- Citation
- [2017] KEHC 6806 (KLR)
- Parties
- Applicant: Nancy Gatwiri; Applicant: Samuel Kamande Mugo; Respondent: Peter Njenga Kihiko
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 191 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- Application allowed in part.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Quantum of Damages, Road Traffic Accident
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nancy Gatwiri
Applicant
Samuel Kamande Mugo
Applicant
Peter Njenga Kihiko
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether leave should be granted to file an appeal out of time against the lower court judgment.
- 2 Whether a stay of execution of the lower court judgment should be granted pending appeal.
- 3 What security or conditions should be imposed if stay is granted.
Ratio Decidendi
The court found that the applicants were not notified of the delivery of the lower court judgment, a fact not disputed by the respondent. This justified granting leave to file the appeal out of time. On the issue of stay, the court balanced the respondent's right to enjoy the fruits of judgment with the applicants' right to appeal on quantum. The court ordered that a substantial sum (Kshs. 1.5 million) be paid to the respondent and the balance of the decretal sum be deposited in an interest-earning account in the names of both advocates, pending the appeal. The applicants were given 30 days to comply with these conditions.
Court Disposition
Application allowed in part.
Orders
- Applicants to file the appeal within 30 days from the date of the ruling.
- Applicants to pay the respondent Kshs. 1,500,000 out of the decretal sum within 30 days.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC APPLICATION 191 OF 2016
NANCY GATWIRI......................................................1ST APPLICANT
SAMUEL KAMANDE MUGO..................................2ND APPLICANT
VERSUS
PETER NJENGA KIHIKO...........................................RESPONDENT
RULING
The applicants were aggrieved by the Judgment of the lower court but did not file an appeal in time. The application before me is by way of Notice of Motion dated 6th May, 2016 under Sections 79G, 1A, 1B,3A of the Civil Procedure Act and Order 42 Rules 1, 2 and 3 and Order 51 Rules 1 and 13 (2) of the Civil Procedure Rules seeking a stay of execution of the lower court judgment delivered on 23rd April 2015 and leave be granted to file the appeal out of time.
The reasons for the orders sought are set out on the face of the application alongside an affidavit sworn by Caroline Kimeto, the legal officer of ICEA LION General Insurance Company Limited. The application is opposed and there is a replying affidavit sworn by the respondent. Both counsel have filed submissions and cited some authorities.
It would appear from the material before me, the intended appeal relates to quantum of damages awarded to the respondent following a road traffic accident. I say so because liability had been agreed at 80% on the part of the applicants and 20% contributory negligence on the part of the respondent.
The judgment of the lower court was delivered without notice to the parties or their advocates. This is a ground that has not been challenged by the respondent. Had that notice been delivered, I believe the applicants would have lodged the appeal in good time. There is every reason therefore to grant leave for the filing of the appeal out of time.
On whether or not there should be stay, I recognize the fact that the respondent is entitled to the fruits of his judgment, but at the same time the applicants have a right of appeal directed to the subject of quantum. They have offered to furnish reasonable security that the court may order.
Considering that the appeal is challenging the quantum only and that justice must look at both sides, the order that commends itself is that a substantial sum should be paid to the respondent and the balance be invested in an interest earning account.
Accordingly the applicants shall file the appeal within 30 days from the date of this ruling and in addition pay the respondent a sum of Kshs. 1. 5 Million out of the decretal sum within the same period. The balance thereof shall be invested in an interest earning account in the names of both advocates (within the same period of 30 days) pending the hearing and determination of the appeal. The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 29th Day of March, 2017.
A. MBOGHOLI MSAGHA
JUDGE