[2019] KEHC 12465 (KLR)
The court found that the applicant failed to satisfy the conditions for stay of execution pending appeal as required by Order 42 Rule 6(2) of the Civil Procedure Rules. The applicant's focus was primarily on seeking leave to appeal out of time, but the court held that the delay of approximately four months from the...
Source-derived case information.
- Citation
- [2019] KEHC 12465 (KLR)
- Parties
- Applicant: Serfina Okello Ogile (suing as the Legal Representative of the estate of Joseph Ogile Ulu); Respondent: Caren Alila Omuto; Respondent: Walter Achango Oloo
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 6 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Extension of Time, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Serfina Okello Ogile (suing as the Legal Representative of the estate of Joseph Ogile Ulu)
Applicant
Caren Alila Omuto
Respondent
Walter Achango Oloo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6(2) of the Civil Procedure Rules.
- 2 Whether the applicant provided sufficient reason for the delay in filing the appeal and is entitled to leave to appeal out of time.
Ratio Decidendi
The court found that the applicant failed to satisfy the conditions for stay of execution pending appeal as required by Order 42 Rule 6(2) of the Civil Procedure Rules. The applicant's focus was primarily on seeking leave to appeal out of time, but the court held that the delay of approximately four months from the date of the impugned ruling was unreasonable. The reasons advanced for the delay, namely lack of notice of the ruling date and late acquisition of proceedings, were deemed unsatisfactory and unsustainable. The absence of the lower court file further limited the court's ability to verify the applicant's claims. Consequently, the court declined to exercise its discretion in...
Court Disposition
application dismissed
Orders
- The application is dismissed with costs to the first respondent only.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT HOMA BAY
MISC. CIVIL APPLIC. NO.6 OF 2019
SERFINA OKELLO OGILE(suing as the LegalRepresentativeof the
estate ofJOSEPH OGILE ULU)............................................................PLAINTIFF
VERSUS
CAREN ALILA OMUTO.........................................................1ST RESPONDENT
WALTER ACHANGO OLOO.................................................2ND RESPONDENT
RULING
1. The Notice of Motion dated 1st July 2019, essentially seeks an order of stay of execution of the ruling made by the magistrate’s court at Ndhiwa on 28th March 2019 pending appeal and for leave to lodge the appeal out of time.
The grounds in support of the application are set out in the body of the notice of motion and fortified by the applicant’s averments contained in the supporting affidavit dated 1st July 2019. These are opposed by the first respondent on the basis of the grounds set out in a replying affidavit deponed by her advocate on record and dated 23rd September, 2019.
2. At the hearing of the application, the applicant through learnedcounsel, Mr. Mboya, reiterated the supporting grounds and the contents of the supporting affidavit and prayed for the orders sought herein.
The first respondent through learned counsel, M/s Nabifo, holding brief for Mr. Kimanga, placed full reliance on the replying affidavit while the second respondent, through learned counsel, Mr. Odero Nyakwana, opposed the application on the basis of the grounds relied upon by the first respondent.
3. Having given due consideration to the application on the basis of the supporting grounds and those in opposition thereto and with regard to the first prayer for stay of execution pending appeal, it is the opinion of this court that the applicant has failed to satisfy the conditions set out in Order 42 Rule 6 (2) Civil Procedure Rulesfor this court to exercise discretion in her favour. Her concentration was mainly on the prayer for leave to file appeal out of time. In that regard, the applicant contended that she was not aware of the date of ruling which was against herself. She said that no notice was served upon her nor was she informed of the ruling date. That, she became aware of the ruling only after she made enquiries after which she applied for copies of the proceedings which were then issued to her in June 2019.
4. The lower court file was not availed herein, this court did not therefore have the benefit to peruse the proceedings and indeed the entire record to see what actually transpired at the lower court which led to this application.
In any event, the delay of approximately four (4) months since the date of the delivery of the impugned ruling, was unreasonable such that the reasons given herein for the delay are unsatisfactory and unsustainable for this court to extend time and exercise discretion in favour of the applicant.
In sum, this application is lacking in merit and is hereby dismissed with costs to the first respondent only. Ordered accordingly.
J.R. KARANJAH
JUDGE
18. 12. 2019
[Delivered and signed this 18thday of December, 2019]