[2016] KEHC 6252 (KLR)
The court found that the delay in filing the application for extension of time to appeal was reasonably explained by the applicant, who cited a change in advocates and late communication of the judgment to the insurer. No execution proceedings had commenced during the four-month period, and the explanation for the...
Source-derived case information.
- Citation
- [2016] KEHC 6252 (KLR)
- Parties
- Applicant: Onesmus Macharia Kimani; Respondent: S K (minor suing through his father and next friend L K K); Respondent: Hamisi Juma Kombo
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 53 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time and Stay of Execution
- Outcome
- application allowed
- Judges
- SJ Chitembwe
- Legal Topics
- Extension of Time, Stay of Execution, Appeals Process, Delay in Filing, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Onesmus Macharia Kimani
Applicant
S K (minor suing through his father and next friend L K K)
Respondent
Hamisi Juma Kombo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the memorandum and record of appeal out of time.
- 2 Whether the applicant is entitled to an order for stay of execution pending appeal.
- 3 Whether the respondent will be prejudiced by the grant of extension and stay.
Ratio Decidendi
The court found that the delay in filing the application for extension of time to appeal was reasonably explained by the applicant, who cited a change in advocates and late communication of the judgment to the insurer. No execution proceedings had commenced during the four-month period, and the explanation for the delay was deemed excusable. The applicant demonstrated a risk of irreparable loss if the decretal sum was paid out and the appeal succeeded. The court balanced the applicant's right to appeal with the respondent's right to enjoy the fruits of judgment by ordering the decretal sum to be deposited in court or a joint account. The application for extension of time and stay of...
Court Disposition
application allowed
Orders
- The applicant shall deposit the decretal sum of Kshs.125,500 in court or in a joint account of counsels for both parties within sixty (60) days.
- The applicant to file the Memorandum of Appeal within 14 days hereof.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
MISC. CIVIL APPLICATION NO. 53 OF 2015
ONESMUS MACHARIA KIMANI ...................................................................... APPLICANT
VERSUS
S K (minor suing through his father and next friend
L K K ....................................................................................................... 1ST RESPONDENT
HAMISI JUMA KOMBO …................................................................... 2ND RESPONDENT
(Being an application for extension of time to file a memorandum of appeal and record of appeal out of time against the judgment of Hon Mrs. Nzibe, RM in Malindi CMCC No. 111 of 2012 delivered on 29th April 2015)
R U L I N G
The respondent herein was involved in a road traffic accident on 30th April 2011 along the Malindi-Mombasa road. He filed Malindi CMCC No. 111 of 2012 against the appellant. The trial court delivered its judgment on 29th April 2015 and awarded the respondent Kshs.125,000 as general damage plus costs and interests.
By a notice of motion dated 14th September 2015, the applicant seeks to stay execution of the decree as well as leave to appeal out of time. The application is supported by the affidavit of Sandra Nyakweba sworn on the same date. The respondent filed a replying affidavit sworn on 10th November 2015. Parties agreed to determine the application by way of written submissions.
The main contention by the applicant is that initially the firm of Menezes, Oloo and Chatur Advocates were on record on his behalf. The said advocates were corresponding with the internal advocate of the insurer (Direct-line Assurance Co. Ltd) by the name Grace Kiroko. The internal advocate left employment in July 2015 and the judgment delivered on 29th April 2015 came to the insurer knowledge in August 2015. The current advocates were instructed to file an appeal.
It is further submitted that the damages awarded are quite excessive and the applicant will suffer irreparable loss. The appeal has high chances of success as the trial court erred by holding that both defendants were jointly and severally liable. The apportionment of damage is erroneous and misguided.
On his part, counsel for the respondent submitted that the application for stay of execution was filed after a period of four (4) months. This is inordinate delay. No appeal is yet to be filed. There is no correspondence between the previous advocates and the insurer to prove that there was instructions to file an appeal. The application is only meant to frustrate the the execution and is an abuse of the court process.
Where the appellant is entitled to exercise his right to pursue an appeal, the respondent equally has the right to benefit from the fruits of his judgment. The application for stay of execution was brought after the expiry of four months. The explanation is quite reasonable. It appears no execution proceedings were done during the four month period. I do find that the explanation of the delay to file the application herein is excusable. The applicant is entitled to pursue his appeal. The proceedings of the trial court were not annexed to assist this court understand the correct background of the dispute.
The applicant will suffer irreparable damage if the decretal sum is paid to the respondent and the appeal turns out in his favour.
As indicated herein, the respondent is equally anxious to benefit from the favourable judgment. I do order that the application deposit the decretal sum of Kshs.125,500 either in court or joint account of counsels for both parties within sixty (60) days hereof.
In the end, the application dated 14th September 2015 is allowed on the above terms. The applicant to file the Memorandum of Appeal within 14 days hereof. Costs shall follow the outcome of the appeal.
Dated, signed and delivered at Malindi this 10th day of March, 2016.
SAID J. CHITEMBWE
JUDGE