[2012] KEHC 222 (KLR)
The court found that although the applicant's explanation for the delay in filing the appeal was not entirely satisfactory, the right of appeal is fundamental and should not be unduly restricted. The delay of about five months was considered inordinate, but since the respondent had not moved to execute the judgment,...
Source-derived case information.
- Citation
- [2012] KEHC 222 (KLR)
- Parties
- Applicant: Samson Karafwa; Respondent: Elijah Ayieko Kevolwe
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 57 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Proceedings
- Outcome
- application allowed with conditions
- Legal Topics
- Leave to Appeal Out of Time, Stay of Proceedings, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson Karafwa
Applicant
Elijah Ayieko Kevolwe
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Proceedings
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against the judgment of the Vihiga Senior Resident Magistrate’s court.
- 2 Whether there should be a stay of proceedings in the lower court pending the intended appeal.
- 3 Whether the delay in filing the appeal was satisfactorily explained.
Ratio Decidendi
The court found that although the applicant's explanation for the delay in filing the appeal was not entirely satisfactory, the right of appeal is fundamental and should not be unduly restricted. The delay of about five months was considered inordinate, but since the respondent had not moved to execute the judgment, the court exercised its discretion in favour of the applicant. The application was allowed on the condition that the applicant deposits Kshs.100,000 as security for the performance of the decree, with costs awarded to the respondent.
Court Disposition
application allowed with conditions
Orders
- The applicant is granted leave to file an appeal out of time against the judgment and/or decree of the Vihiga Senior Resident Magistrate’s Civil Suit No. 70 of 2006.
- The applicant shall deposit Kshs.100,000 as security for the performance of the decree.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
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SAMSON KARAFWA …………………………………… APPLICANT
VERSUS
ELIJAH AYIEKO KEVOLWE ………………………… RESPONDENT
( An application for leave to file an appeal out of time and stay of proceedings against the judgment and/or decree of the court in the Vihiga Senior Resident Magistrate’s court Civil Suit No. 70 of 2006)
RULING
The application by way of Notice of Motion dated 15. 11. 10 seeks orders that:-
“1. The firm of A.B.L. Musiega & Company advocates be let to take over the proceedings in the Vihiga Senior Resident Magistrate’s court Civil Suit No. 70 of 2006 on behalf of the applicant and the intended appeal.
2. The applicant be granted leave to file an appeal out of time against the judgment and or decree of the court in the Vihiga Senior Resident Magistrate’s Civil Suit No. 70 of 2006 Elijah Ayieko Kevolwe –vs- Samson Karafwa.
3. There be stay of proceedings in the lower court pending inter partes hearing of this application and also pending filing, hearing and determination of the intended appeal.
4. Costs of this application be provided for.”
The application is supported by the affidavit of the applicant SAMSON KARAFWA, sworn on 15. 11. 10. The thrust of the said affidavit is that the applicant was not aware of the delivery of the judgment.
In opposition to the application, the respondent, ELIJAH AYIEKO KEVOLWE filed a replying affidavit sworn on 15. 6.11. It is contested that in the said affidavit that the applicant was duly represented by counsel when judgment was delivered.
Mr. Musiega Advocate appeared for the applicant while Mr. Athung’a Advocate appeared for the respondent. Both counsels filed written submissions which I have duly considered.
The annexed copy of judgment (annexture EAK1) clearly shows that one Mr. Osango was holding brief for Mr. Nyangah for the defendant (applicant) when the judgment was delivered.
The applicant can only blame his advocate for failing to inform him of the judgment. There is therefore no satisfactory explanation for the delay in filing the appeal in time.
The judgment was delivered on 16. 6.10. The application herein was filed on 16. 11. 10. This is a delay of about five months. The delay is inordinate although it seems that the respondent has not yet moved to execute the same.
All in all, this court is however inclined to let the applicant exercise his right of appeal.
Consequently, the application is allowed on condition that the applicant deposit Kshs.100,000/= security for the performance of the decree. Costs to the respondent.
Delivered, dated and signed at Kakamega this 29th day of November, 2012
B. THURANIRA JADEN
J U D G E