[2020] KEHC 8546 (KLR)
The court found that the applicant failed to provide any evidence to support the claim of delay in obtaining proceedings, as no letter requesting proceedings or certificate of delay was annexed. The court further noted that the judgment in Isiolo CMCC No. 75 of 2016 did not result in any executable decree, as both...
Source-derived case information.
- Citation
- [2020] KEHC 8546 (KLR)
- Parties
- Applicant: Salad Huka Abdi; Respondent: Equity Bank
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 64 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salad Huka Abdi
Applicant
Equity Bank
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant has provided sufficient grounds for extension of time to file an appeal out of time.
- 2 Whether the applicant is entitled to stay of execution of the judgment/decree in Isiolo CMCC No. 75 of 2016.
- 3 Whether the delay in filing the appeal was excusable and not inordinate.
Ratio Decidendi
The court found that the applicant failed to provide any evidence to support the claim of delay in obtaining proceedings, as no letter requesting proceedings or certificate of delay was annexed. The court further noted that the judgment in Isiolo CMCC No. 75 of 2016 did not result in any executable decree, as both the applicant's claim and the respondent's counterclaim were dismissed with no order as to costs. Consequently, there was no basis for granting a stay of execution. The court concluded that the application lacked merit and dismissed it with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 12th July 2019 is dismissed in its entirety.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
MISC. CIVIL APPLICATION NO. 64 OF 2019
SALAD HUKA ABDI.......................................................................APPLICANT
VERSUS
EQUITY BANK............................................................................RESPONDENT
RULING
1. The Applicant Salad Huka Abdi brought notice of Motion Application dated 12. 7.2019 under Certificate of Urgency seeking that he be granted leave to appeal out of time and also that the court issues stay of execution orders against the judgment/decree and all consequently orders in Isiolo CMCC No. 75 of 2016 delivered on 7. 5.2019 pending the hearing and determination of the application herein and pending the hearing and determination of the intended appeal. The applicant also sought for costs of the application
2. The application was based on the grounds on the face of the application and on the supporting affidavit sworn on 12th July 2019 by Salad Huda Abdi.
3. The applicant in the grounds on the application said that Judgment was delivered on 7th May 2019 but there was a delay in obtaining proceedings and therefore delay in lodging appeal was purely inadvertent and excusable. He said the delay was not inordinate.
4. In the supporting affidavit the applicant averred that he had a good appeal with high chances of success.
5. The application was canvassed by way of written submissions.
6. The application and submissions by applicant have been considered and this court found nothing to support the applicants ground that the proceedings were delayed and thus he didn’t file appeal in time. He didn’t annex any letter applying for proceedings neither did he annex a certificate from the trial magistrate for delay in supplying the proceedings from the time judgment was delivered upto the time that he filed the application herein.
7. Secondly, the judgment of the court was to the effect both the applicants claim and the Respondents counterclaim had not succeeded and no orders for costs were made. It has not been shown that the Respondent intended to execute any decree of the court as there was none to be executed.
8. This court therefore finds that the application has no merit and it is dismissed entirely with costs to the Respondent.
HON A. ONG’INJO
JUDGE
RULING DELIVERED, DATED AND SIGNED IN COURT ON 6TH DAY OF FEBRUARY 2020.
In the presence of :
C/A: Kinoti :-
Applicant: - Mr Karanja Advocate holding brief for Kiogora M. for Applicant.
Respondent: - R.K. Gitonga Advocate for Respondent – N/A
HON A. ONG’INJO
JUDGE
Court:-Certified copies of ruling to be supplied upon payment of copying charges.
HON A. ONG’INJO
JUDGE