[2004] KEHC 1373 (KLR)
The court found that the delay in filing the application and intended appeal was excusable due to the non-availability of the court file and lack of notice of the judgment, as detailed by the applicant's counsel. While the applicant did not demonstrate the loss that would be occasioned if stay was not granted, the...
Source-derived case information.
- Citation
- [2004] KEHC 1373 (KLR)
- Parties
- Applicant: Spin Knit Dairy Limited; Respondent: Maiyu Mitinda; Respondent: Patrick Kioko Kimily; Respondent: Benjamin Kange Odera; Respondent: Elijah Kabue Muriithi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 302 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Extension of Time to Appeal
- Outcome
- application allowed with conditions
- Legal Topics
- Stay of Execution, Extension of Time to Appeal, Security for Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Spin Knit Dairy Limited
Applicant
Maiyu Mitinda
Respondent
Patrick Kioko Kimily
Respondent
Benjamin Kange Odera
Respondent
Elijah Kabue Muriithi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for delay in filing the appeal and the application.
- 2 Whether a stay of execution of the judgment/decree should be granted pending appeal.
- 3 Whether the applicant should be required to deposit security for the decretal sum as a condition for stay.
Ratio Decidendi
The court found that the delay in filing the application and intended appeal was excusable due to the non-availability of the court file and lack of notice of the judgment, as detailed by the applicant's counsel. While the applicant did not demonstrate the loss that would be occasioned if stay was not granted, the court exercised its discretion in favour of allowing the right of appeal, provided that the applicant deposits the entire decretal sum in court as security. The court balanced the right of appeal with the need to protect the interests of the successful litigant, granting the application for stay and extension of time on strict conditions regarding security and timelines for...
Court Disposition
application allowed with conditions
Orders
- The applicant shall deposit the entire decretal sum in CMCC 2104/2002 (Milimani) in court within seven (7) days.
- The intended appeal shall be filed and served within forty-five (45) days.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MISC. CIVIL APPL. NO. 302 OF 2004
SPIN KNIT DAIRY LIMITED.…………………………………………..……..APPLICANT
VERSUS
MAIYU MITINDA
PATRICK KIOKO KIMILY
BENJAMIN KANGE ODERA
ELIJAH KABUE MURIITHI…………………………………………...….….PLAINTIFFS
R U L I N G
1. This is an Application by the intended Appellants for orders that: -
1. That this application be heard ex-parte in the first instance owing to its urgency.
2. That this Honourable Court be pleased to grant a stay of execution of the Judgment/Order/Decree dated 2nd March 2004 of the Honourable Magistrate’s Court pending the hearing and determination of this Application.
3. That this Honourable Court be pleased to enlarge the time herein to enable the 1st Defendant lodge an Appeal.
4. That the Honourable Court be pleased to admit the 1st Defendant’s Appeal out of time.
5. That there be a stay of execution of the Judgment/Order/Decree of this Magistrate’s Honourable Court dated 2nd of March 2004 pending the Hearing and determination of the 1st Defendant’s Appeal.
6. That costs herein be in the cause.
2. I have read the grounds in support and the Affidavits of Jackline Kwamboka and Martha Gachara in support. One of the frustrations that continuously follow practitioners of law is non-availability of court files when needed. The intended Appellants’ counsel has detailed out with such clarity and repeated the same in her submissions, the attempts she made to procure the judgment which though on notice to parties was not brought to her attention as is the practice. One is bound to believe her. The delay in filing the instant Application and the Appeal are excused for these reasons.
3. As regards the loss that may be occasioned to the intended Appellants, I agree with counsel for the Respondents that this has not been shown at all.
4. As regards security, the intended Appellants are agreeable to the deposit of the entire decretal sum in court pending hearing and determination of the intended Appeal. Counsel for the Respondents was silent on this issue.
5. For my part and taking the position that the right of appeal should not be unduly denied and yet cognizance of the fact that injustice should not be visited on the successful litigant by allowing the exercise of that right, I should grant the Application on the following reasons; -
i) The intended Appellant, now Applicant herein should deposit the entire decretal sum in CMCC 2104/2002 (Milimani) in court within the next seven (7) days.
ii) The Intended appeal should be filed and served within the next fourty-five (45) days
iii) Failure to abide with orders (i) and (ii) above will discharge the said orders and execution shall proceed.
iv) Costs of this Application shall be paid to the Respondents, in any event.
Orders accordingly.
Dated and delivered at Nairobi this 24th day of September 2004.
I. LENAOLA
Ag. JUDGE
24/9/2004
Coram: Makhandia, Ag. J.
Mrs. Munga for Kalava for Respondent
No appearance for the Applicant
CC: Ndung’u
Ruling delivered in court by Justice Makhandia on behalf of Justice Lenaola who is away on duty at Embu High Court.
MAKHANDIA
Ag. JUDGE