[2019] KEHC 6894 (KLR)
The court found that the delay of approximately three months in filing the appeal was not inordinate and was satisfactorily explained by the applicant, whose advocate had misrecorded the judgment date. The court held that the applicant should not be penalized for the advocate's innocent mistake. Further, the court...
Source-derived case information.
- Citation
- [2019] KEHC 6894 (KLR)
- Parties
- Applicant: Paul Mwangi Churu; Respondent: Elizabeth Akoth
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 528 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Application allowed with conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Extension of Time, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Mwangi Churu
Applicant
Elizabeth Akoth
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the appeal out of time.
- 2 Whether a stay of execution of the lower court judgment should be granted pending appeal.
- 3 What conditions, if any, should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the delay of approximately three months in filing the appeal was not inordinate and was satisfactorily explained by the applicant, whose advocate had misrecorded the judgment date. The court held that the applicant should not be penalized for the advocate's innocent mistake. Further, the court determined that the respondent would not suffer serious prejudice if a stay was granted, provided that the applicant furnished a guarantee for the entire decretal sum. Balancing the interests of both parties, the court granted a conditional stay of execution and leave to file the memorandum of appeal out of time, subject to the applicant providing a guarantee within 14 days.
Court Disposition
Application allowed with conditions.
Orders
- Stay of execution of the lower court judgment granted on condition that the applicant provides a guarantee by an insurance company or bank for the entire decretal sum within 14 days.
- Leave granted to the applicant to file a memorandum of appeal within 7 days from the date of the ruling.
Full Case Text
Judgment text and source record
19 paragraphs
REPBULIC OF KENYA
IN TE HIGH COURT OF KENYA
AT NAIROBI
MISC. CIVIL APPLICATION NO. 528 OF 2018
PAUL MWANGI CHURU..................................................APPLICANT
VERSUS
ELIZABETH AKOTH...................................................RESPONDENT
RULING
The application before me is by way of Notice of Motion dated 22nd October, 2018 seeking stay of execution of the lower court judgment and leave to lodge the Memorandum of Appeal out of time. It is brought under Sections 1A, 1B, 79G and 95 of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules.
The application is supported by an affidavit sworn by the applicant together with grounds set out on the face thereof. It is opposed and there is a replying affidavit sworn by the advocate for the respondent alongside grounds of opposition. Counsel agreed that this application be determined on affidavit evidence.
The lower court judgment was delivered on 11th July, 2018. This application was filed on 22nd October, 2018 a period of about 3 months delay. The judgment was first supposed to be delivered on 6th July, 2018 but was differed to 11th July, 2018. Counsel for the applicant did not attend the court on the said 11th July, 2018.
The reasons advanced are that, the advocate recorded in the diary that it would be delivered on 12th November, 2018. The annexure to that effect has been displayed. The only time the advocate for the applicant knew that judgment had been delivered was upon receipt of the letter dated 12th October, 2018 from the advocate for the respondent.
This is said to have been an innocent mistake which should not be visited upon the applicant. Further, it is the applicant’s position that there is an arguable appeal and that he is prepared to provide adequate security in the form of a bank guarantee for half of the decretal sum as a conditional for stay.
I have considered the rival arguments in the affidavits. Although no draft memorandum of appeal has been attached, the affidavit in support of the application challenges the finding on liability. The respondent has a judgment in her favour while the applicant has a right of appeal. The delay in this matter is not inordinate and in any case may be excused in view of the explanation given in the affidavit of the applicant. Further, no serious prejudice has been said shall befall the respondent if stay is allowed.
In balancing the interests of both parties, I agree that there should be a stay of execution of the lower court judgment on condition that the applicant provides a guarantee by either an insurance company or a bank for the entire decretal sum pending the hearing and determination of this suit. The guarantee shall be effected within 14 days from the date of this ruling.
Further, leave is hereby granted for the applicant to file a memorandum of appeal within 7 days from the date of this ruling. Failure to comply with the conditions set out herein above, the stay shall be lifted and execution proceed. The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 4th Day of April, 2019.
A. MBOGHOLI MSAGHA
JUDGE