[2025] KEHC 7569 (KLR)
The court found that there was no record indicating that either party was notified of the date of judgment delivery, and the judgment was delivered in the absence of both counsels. This procedural lapse affected the applicant's right to appeal. The respondent did not dispute the lack of notice. The court exercised...
Source-derived case information.
- Citation
- [2025] KEHC 7569 (KLR)
- Parties
- Applicant: Martin Nyongesa; Respondent: Milton Mboya Lukuyu
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E001 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Stay Pending Application for Extension of Time to Appeal
- Outcome
- application allowed
- Judges
- RK Limo
- Legal Topics
- Stay of Execution, Extension of Time, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Nyongesa
Applicant
Milton Mboya Lukuyu
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay Pending Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending determination of an application for extension of time to appeal out of time.
- 2 Whether failure to notify parties of the judgment delivery affects the applicant's right to appeal.
Ratio Decidendi
The court found that there was no record indicating that either party was notified of the date of judgment delivery, and the judgment was delivered in the absence of both counsels. This procedural lapse affected the applicant's right to appeal. The respondent did not dispute the lack of notice. The court exercised its discretion in favour of the applicant, finding that the application for stay was merited. The deposit of Kshs.500,000/- was deemed sufficient security. Accordingly, stay of execution was granted pending the determination of the application for extension of time to appeal out of time.
Court Disposition
application allowed
Orders
- Stay of execution of the judgment dated 31/1/2025 and any consequential orders is granted pending hearing and determination of the application for extension of time to appeal out of time.
- The amount of Kshs.500,000/- earlier deposited shall be treated as security in the meantime.
Full Case Text
Judgment text and source record
27 paragraphs
Nyongesa v Lukuyu (Civil Appeal E001 of 2020) [2025] KEHC 7569 (KLR) (4 June 2025) (Ruling)
Neutral citation: [2025] KEHC 7569 (KLR)
Republic of Kenya
In the High Court at Kitale
Civil Appeal E001 of 2020
RK Limo, J
June 4, 2025
Between
Martin Nyongesa
Applicant
and
Milton Mboya Lukuyu
Respondent
Ruling
1. Martin Nyongesa the applicant herein has brought an application dated 26/3/2025 asking for the following prayers;-i.Spentii.Spentiii.That pending the hearing and determination of an application for extension of time to appeal out of time there be stay of execution of judgment dated 31/1/2025 and any consequential orders thereof
2. The grounds upon which the prayer is sought are as follows;-a.That Justice Mrima rendered a judgment on 31/1/25 striking out the appeal herein.b.That the applicant was unaware that the judgment had been delivered because there was no notice issued.c.That the applicant was made aware of the judgment when he was served with a bill of costs on 6/3/25. d.That the applicant wishes to pursue an appeal and has deposited Kshs.500,000/- which can be treated as security.
3. The applicant has sworn an affidavit sworn on 26/3/25 where he has majorly reiterated the above grounds. He avers that he wants to pursue an appeal and challenge the decision of this court in the Court of Appeal.
4. In his written submissions, the applicant contends that he was notified on 6/6/24 that judgment had been deferred because it was not ready and would be delivered on notice.
5. He maintains that he did not receive any notice that judgment was to be delivered on 31/1/25.
6. The respondent has opposed this application through a replying affidavit sworn on 4/4/25. The respondent faults the applicant for undue delay in filing this application.
7. The respondent contends that if the applicant learnt of the judgment on 6/3/25, there is no reason given as to why this application was filed on 26/3/25.
8. The respondent contends that the applicant has approached this court with unclean hands and is intended to deny or delay his fruits of judgment.
9. This court has considered this application and grounds raised. I have looked at the objection raised by the respondent. The applicant is seeking the discretion of this court to order stay pending determination of his application for extension of time to lodge his appeal out of time.
10. I have checked at the record and it is true that this court was to deliver judgment on the appeal herein on 6/6/2024 but the judgment was not delivered on that day. The same was delivered on 31/1/25 and there is no record indicating that the appellant/applicant or the respondent were duly notified. The judgment was delivered in the absence of both counsels on record.
11. The respondent has not disputed this anomaly which goes into the root of the appellant’s right to appeal.
12. This court finds that the applicant has made out a strong case for this court to exercise its discretion in his favour. The application dated 26/3/25 is merited and is allowed in terms of prayer 3. The amount of Kshs.500,000/- earlier deposited can be treated as security in the meantime.
DELIVERED, DATED AND SIGNED AT KITALE THIS 4TH DAY OF JUNE, 2025. HON JUSTICE R.K. LIMOKITALE HIGH COURTRuling delivered in open courtIn the presence of;M/s Ngeiywa for RespondentNyamweya for AppellantDuke/Chemosop- Court Assistants