[2018] KEHC 4386 (KLR)
The court found that the Applicant failed to demonstrate sufficient cause for not filing the appeal within the prescribed time, as there was inordinate delay in bringing the application and no adequate explanation for the delay was provided. The Applicant also failed to provide evidence of repairs or damages to...
Source-derived case information.
- Citation
- [2018] KEHC 4386 (KLR)
- Parties
- Applicant: RHZ Enterprises Limited; Respondent: Roseline Okeyo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 129 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time and Stay of Execution
- Outcome
- application dismissed
- Judges
- AK Bor
- Legal Topics
- Extension of Time, Stay of Execution, Appeals Out of Time, Landlord Tenant Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
RHZ Enterprises Limited
Applicant
Roseline Okeyo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time and Stay of Execution
Legal Issues
- 1 Whether the Applicant has demonstrated sufficient cause for extension of time to file an appeal out of time.
- 2 Whether the Applicant is entitled to a stay of execution pending appeal.
- 3 Whether the application is res judicata due to a previous similar application.
Ratio Decidendi
The court found that the Applicant failed to demonstrate sufficient cause for not filing the appeal within the prescribed time, as there was inordinate delay in bringing the application and no adequate explanation for the delay was provided. The Applicant also failed to provide evidence of repairs or damages to support the claim of an arguable appeal. The court further held that the application was not res judicata since the previous application was withdrawn and not determined on its merits. Consequently, the Applicant did not meet the threshold for extension of time or for grant of stay of execution, and the application was dismissed with costs to the Respondent.
Court Disposition
application dismissed
Orders
- The application dated 23/6/2017 is dismissed with costs to the Respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC MISC. CASE NO. 129 OF 2017
RHZ ENTERPRISES LIMITED..............................................APPLICANT
VERSUS
ROSELINE OKEYO............................................................RESPONDENT
RULING
The Applicant seeks to extend the time for filing an appeal out of time against the judgement entered against it on 23/12/2016 through the application dated 23/6/2017. It also seeks to stay execution of the decree emanating from that judgement pending hearing and determination of the application and the intended appeal.
The Applicant argues that it has an arguable appeal with a likelihood of success and that it only became aware of the judgement on 9/2/2017 when the Respondent threatened to commence execution. The Applicant filed Miscellaneous Application No. 75 of 2017 but omitted to seek leave for extension of time and had to withdraw that application and file the instant application.
It contends that it has met the requirements for the grant of stay and that it will suffer substantial loss if execution proceeds since the Respondent may be unable to refund the decretal sum if the intended appeal succeeds. The Applicant is willing to furnish security by way of a bank guarantee for the due performance of the decree. The Applicant annexed a copy of the board resolution and the draft memorandum of appeal. It did not attach a copy of the ruling appealed from or the decree to enable the court see that it has an arguable appeal.
The Respondent averred in her Replying Affidavit that the Applicant does not have an arguable appeal and that this application is a waste of judicial time. She deponed that she entered into a lease agreement with the Applicant and paid a deposit of Kshs. 70,000/= to the Applicant which was refundable at the determination of the tenancy. She claims she returned the premises to the Applicant in good and tenantable condition and that the Applicant has not shown evidence of damage to the premises as it alleges.
The Respondent also argued that there was inordinate delay of over six months in filing this application, and further, that the application is res judicata since the Applicant had previously filed a similar application which it withdrew. That application was not decided upon hence the instant application is not res judicata.
The court has considered the application, the reply and the submissions.
The Applicant did not give evidence of the repairs it carried out on the demised premises to demonstrate that it has an arguable appeal. There was inordinate delay in bringing this application. The Applicant has not shown sufficient cause for not filing the appeal in time.
The application dated 23/6/2017 is dismissed with costs to the Respondent.
Dated and delivered at Nairobi this 30th day of August 2018.
K. BOR
JUDGE
In the presence of: -
Ms. Sinana holding brief for Mr. Achach for the Applicant
No appearance for the Respondent
Mr. V. Owuor- Court Assistant