[2016] KEHC 1214 (KLR)
The court found that the delay in filing the appeal was only five days and was satisfactorily explained by the applicants. The reasons for the delay were plausible and not inordinate. The applicants promptly filed the application for leave to appeal out of time and for stay of execution. The court was satisfied that...
Source-derived case information.
- Citation
- [2016] KEHC 1214 (KLR)
- Parties
- Applicant: Reliable Freight Service Limited; Applicant: Kalu Kilonzo; Respondent: Henry Ingaru Mulama
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 583 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application allowed with conditions
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Extension of Time, Security for Stay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Reliable Freight Service Limited
Applicant
Kalu Kilonzo
Applicant
Henry Ingaru Mulama
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicants have provided sufficient reason for delay in filing the appeal out of time.
- 2 Whether the applicants are entitled to stay of execution pending appeal.
- 3 Whether the respondent will suffer prejudice if the orders sought are granted.
Ratio Decidendi
The court found that the delay in filing the appeal was only five days and was satisfactorily explained by the applicants. The reasons for the delay were plausible and not inordinate. The applicants promptly filed the application for leave to appeal out of time and for stay of execution. The court was satisfied that the requirements for grant of leave and stay had been met, including the offer of security by the applicants. The court held that no prejudice would be occasioned to the respondent if the orders sought were granted. Accordingly, leave to appeal out of time was granted, and a stay of execution was ordered on condition that the applicants deposit Kshs. 800,000 in an...
Court Disposition
application allowed with conditions
Orders
- Leave to appeal out of time is granted.
- The applicant shall regularize the filing of the memorandum of appeal within fourteen days.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC APPLICATION NO. 583 OF 2015
RELIABLE FREIGHT SERVICE LIMITED …1ST APPLICANT/ APPELLANT
KALU KILONZO ……………………........…2ND APPLICANT/ APPELLANT
VERSUS
HENRY INGARU MULAMA …………….................…………...RESPONDENT
RULING
The lower court delivered judgment against the applicants herein on 4th November, 2015. The applicants were aggrieved by the said judgment but did not lodge an appeal within the prescribed period of 30 days. It was not until 6th December, 2015 that instructions to appeal were given.
There is now before me an application under Section 79G, Order 42 Rule 6, Order 22 Rule 22, Order 50 Rule 6 of the Civil Procedure Rules and Section 1A and 3 A of the Civil Procedure Act seeking orders that there be a stay of execution of the decree in CMCC No. 8132 of 2013 Nairobi, that leave be granted to file appeal out of time and the memorandum of appeal attached be deemed as filed upon payment of court fees, and finally that there be a stay of execution of the decree pending the hearing and determination of the intended appeal.
The grounds upon which the application is based are set out on the face of the application and there is also a supporting affidavit by the legal officer Fidelity Shield Insurance Company Limited.
The application is opposed and there is a replying affidavit sworn by the respondent. Both learned counsel have filed written submissions which I have considered. The orders sought are discretionally but the applicant has a right of appeal. When time computation is done, the delay was for five days.
Soon after, the applicant filed this application. The delay in filing the application cannot be said to be inordinate. The reasons for the delay are adequately explained in the grounds and supporting affidavit. They are in my assessment plausible.
In satisfaction of the requirement of Order 42 of the Civil Procedure Rules, the applicant has offered post security. I see no prejudice that may be occasioned to the respondent if the orders sought are granted. Accordingly, I hereby grant leave to appeal out of time and order that the applicant shall regularize the filing of the memorandum of appeal within fourteen days of today.
There shall be a stay of execution pending the determination of appeal, but as security the applicant shall cause to be deposited in an interest earning account a sum of Kshs. 800,000/= in the names of the two advocates for the applicant and respondent within the next 30 days. The costs herein shall be in the cause.
Orders accordingly.
Dated and delivered at Nairobi this 27h day of July, 2016.
A.MBOGHOLI MSAGHA
JUDGE