[2019] KEHC 1358 (KLR)
The court found that the delay in filing the record of appeal was due to the lower court's failure to provide the necessary proceedings, not any fault of the appellants. As such, the appellants could not be punished for circumstances beyond their control. The court declined to grant the orders sought by the...
Source-derived case information.
- Citation
- [2019] KEHC 1358 (KLR)
- Parties
- Appellant: Pete Kusimba Nyongesa; Appellant: Grace Muroria; Respondent: Willy Muli Musyoka Maati
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 543 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application for Release of Deposited Sums and Striking Out of Appeal
- Outcome
- application dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Appeal Record Preparation, Release of Decretal Sum, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pete Kusimba Nyongesa
Appellant
Grace Muroria
Appellant
Willy Muli Musyoka Maati
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Release of Deposited Sums and Striking Out of Appeal
Legal Issues
- 1 Whether the court should order the release of the deposited decretal sum to the respondent before the appeal is heard.
- 2 Whether the Memorandum of Appeal should be struck out and the appellants barred from filing the record of appeal due to delay.
- 3 Whether the delay in filing the record of appeal is attributable to the appellants or to systemic shortcomings.
Ratio Decidendi
The court found that the delay in filing the record of appeal was due to the lower court's failure to provide the necessary proceedings, not any fault of the appellants. As such, the appellants could not be punished for circumstances beyond their control. The court declined to grant the orders sought by the respondent, including the release of the deposited sum and the striking out of the appeal, as doing so would prejudice the appellants' right to be heard. The court directed the Deputy Registrar to facilitate the availability of the lower court record within 30 days, after which the appellants must file the record of appeal within 14 days. Each party was ordered to bear their own costs.
Court Disposition
application dismissed
Orders
- The application is declined and dismissed.
- The Deputy Registrar shall facilitate the availability of the lower court record within 30 days from the date of this ruling.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 543 OF 2017
PETE KUSIMBA NYONGESA.........................................................1STAPPELLANT
GRACE MURORIA..........................................................................2ND APPELLANT
VERSUS
WILLY MULI MUSYOKA MAATI......................................................RESPONDENT
RULING
On 19th June, 2018 I delivered a ruling on an application at the instance of the appellants that sought an order of stay of execution pending the appeal file against the judgment of the lower court.
In that ruling, I granted the order sought on condition that the appellants paid Kshs. 1 million to the respondent and the balance of the decretal sum be invested in an interest earning account in the names of both advocates for the parties within 30 days from the date of that ruling.
It is common ground that the said conditions have been fulfilled.
There is now an application before me by way of Notice of Motion dated 26th April, 2019 seeking an order that the amount deposited following the above ruling be released to the applicant, and that the Memorandum of Appeal be struck out and the appellants be barred from filing the record of appeal.
There is an alternative prayer to the effect that the respondent be awarded a substantial amount from the decretal sum to enable him access medical assistance. The application is supported by an affidavit sworn by the respondent alongside grounds set out on the face of the application. The same is opposed and there is a replying affidavit sworn by the advocate for the appellant. Upon directions both parties filed submissions and cited some authorities which I have noted.
The applicant has cited Article 48 of the Constitution, Order 51 of the Civil Procedure Rules, Sections 1 A, 1B and 3 of the Civil Procedure Act in advancing the application. The orders sought by the applicant appear to be asking this court to review the orders of the ruling made on 19th June, 2018.
Both parties recognize the rights of the respondent as well as the appellants. These rights were highlighted in my said ruling. I have previously observed in other matters that the systemic shortcomings of the institution should not be blamed on the parties that seek justice before the courts. Invariably in all cases where parties have expressed the desire to appeal, proceedings from the lower court are never availed in time. The delay in the filing of the record of appeal by the appellant herein falls in that category.
To date the record of the lower court has not been availed to facilitate the preparation of the record of appeal by the appellants. They cannot be punished because of that. They are not in charge of the preparation of the record of appeal, a responsibility that is squarely in the control and mandate of the lower court.
While not downplaying the urgency of the respondent’s condition, the court is unable to give the orders sought because prejudice may follow on the part of the appellants yet they have all the rights to be heard.
Bearing that in mind, the application before me is declined and therefore dismissed. I direct that the Deputy Registrar shall facilitate the availability of the lower court record within 30 days from the date of this ruling and thereafter upon receipt of the proceedings by the appellants, the record of appeal shall be filed within 14 days. Each party shall bear their own costs.
Dated, signed and delivered at Nairobi this 21st Day of November, 2019.
A. MBOGHOLI MSAGHA
JUDGE