[2021] KEHC 6639 (KLR)
The court found that the applicant had already filed an appeal (Nanyuki HC Civil Appeal No 15 of 2019) against the same ruling and order of the lower court that was the subject of the present application. The existence of the pending appeal rendered the current application for leave to appeal out of time and for...
Source-derived case information.
- Citation
- [2021] KEHC 6639 (KLR)
- Parties
- Applicant: Samuel M T Githinji; Respondent: Francis Wachira Githae (T/A Large Power and Controls)
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 18 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application dismissed with costs to the respondent
- Judges
- DW Mbuteti
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Abuse of Process, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel M T Githinji
Applicant
Francis Wachira Githae (T/A Large Power and Controls)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant is entitled to leave to appeal out of time against the lower court's ruling and order of 29/08/2019.
- 2 Whether the applicant is entitled to a stay of execution of decree and consequential orders.
- 3 Whether the present application is an abuse of the court process given the existence of a pending appeal.
Ratio Decidendi
The court found that the applicant had already filed an appeal (Nanyuki HC Civil Appeal No 15 of 2019) against the same ruling and order of the lower court that was the subject of the present application. The existence of the pending appeal rendered the current application for leave to appeal out of time and for stay of execution unnecessary and misconceived. The court held that the present application amounted to an abuse of the process of the court, as the applicant should be prosecuting the already pending appeal rather than filing duplicative applications. Consequently, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 21/08/2020 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NANYUKI
MISCELLANEOUS CIVIL APPLICATION NO.18 OF 2020
SAMUEL M T GITHINJI.................................................APPLICANT
VERSUS
FRANCIS WACHIRA GITHAE
(T/A LARGE POWER AND CONTROLS)...................RESPONDENT
R U L I N G
1. This ruling concerns the notice of motion herein dated 21/08/2020. The application seeks, firstly, leave to appeal out of time under section 79G of the Civil Procedure Act and, secondly, stay of execution of decree and all consequential orders under Order 42, Rule 6 of the Civil Procedure Rules, 2010.
2. What is sought to be appealed against is not stated on the face of the application; however, from the supporting affidavit and a draft memorandum of appeal annexed thereto, what is sought to be appealed against is the ruling and order of the lower court delivered on 29/08/2019 by which that court refused an application by the Applicant to set aside ex parte proceedings of 07/11/2018 and ex parte judgment delivered on 28/11/2018.
3. In the course of arguments on 17/05/2021 learned counsel for the Applicant stated that there had been a previous application in this court similar to the present one vide Nanyuki HC Misc Civil Application No 17 of 2020 which counsel stated was “abandoned and dismissed”. Learned counsel for the Respondent stated that he was not aware of any such application as neither he nor the Respondent personally was served with such application.
4. Before commencing to write this ruling, I directed the High Court Civil Registry to avail to me the alleged Nanyuki HC Misc Civil Application No 17 of 2020 between the parties. The file bearing that number is not in the names of the parties herein.
5. The only other file bearing the names of these same parties that the registry staff found was Nanyuki HC Civil Appeal No 15 of 2019 (Samuel M T Githinji –vs- Francis Wachira Githae – t/a Large Power & Controls). The appeal is against –
“…Ruling in Nanyuki Chief Magistrate’s Court Civil Case No 3 of 2018 by learned…L Mutai (CM) on 29/08/2019”.
That is the very same ruling/order that the Applicant in the present application is seeking leave to appeal against!
6. It means therefore, that there is already an appeal pending (filed on 27/09/2019) which the Applicant should be prosecuting instead of filing useless applications. That appeal was filed through M/s. G M Wanjohi & Co., Advocates, the same advocates who filed the present application on 01/09/2020!
7. Needless to say, the present application is misconceived and an abuse of the process of the court. It is hereby dismissed with costs to the Respondent. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 2ND DAY OF JUNE 2021
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 3RD DAY OF JUNE 2021