[2009] KEHC 1208 (KLR)
Despite the appellant's laxity in pursuing the lower court proceedings, judgment, and decree, the court found that the record of appeal was now ready and that the 1st respondent would not suffer further prejudice. The court emphasized the interest of substantial justice and determined that extending time for the...
Source-derived case information.
- Citation
- [2009] KEHC 1208 (KLR)
- Parties
- Appellant: Spin Knit Limited; Respondent: Josephine Njeri Kimani (suing for and on behalf of the Estate of Stephen Kuria Kimani (Deceased)); Respondent: Rev. Moses Kinuthia Wanjiku
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 697 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Applications (stay of Execution and Extension of Time)
- Outcome
- Application for extension of time allowed; application to set aside stay of execution dismissed.
- Judges
- GG Okwengu
- Legal Topics
- Stay of Execution, Extension of Time, Appeal Record Filing, Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Spin Knit Limited
Appellant
Josephine Njeri Kimani (suing for and on behalf of the Estate of Stephen Kuria Kimani (Deceased))
Respondent
Rev. Moses Kinuthia Wanjiku
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Applications (stay of Execution and Extension of Time)
Legal Issues
- 1 Whether the order of stay of execution should be set aside for non-compliance with court conditions.
- 2 Whether the appellant should be granted an extension of time to file and serve the record of appeal out of time.
Ratio Decidendi
Despite the appellant's laxity in pursuing the lower court proceedings, judgment, and decree, the court found that the record of appeal was now ready and that the 1st respondent would not suffer further prejudice. The court emphasized the interest of substantial justice and determined that extending time for the appellant to file and serve the record of appeal would facilitate determination of the appeal on its merits. The court therefore granted the appellant 15 days to file and serve the record of appeal, with costs of both applications awarded to the 1st respondent.
Court Disposition
Application for extension of time allowed; application to set aside stay of execution dismissed.
Orders
- The appellant shall duly file and serve the record of appeal within 15 days from the date hereof.
- The appellant shall pay costs of both applications to the 1st respondent in any event.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Civil Appeal 697 of 2008
SPIN KNIT LIMITED……………………………..…..APPELLANT
VERSUS
JOSEPHINE NJERI KIMANI (suing for and onbehalf of the Estate of
STEPHEN KURIA KIMANI (Deceased)…..…..........1ST RESPONDENT
REV. MOSES KINUTHIA WANJIKU……...…...2ND RESPONDENT
R U L I N G
1. There are two applications which are pending before me. The first one was a Notice of Motion filed on 30th September, 2009 in which Josephine Njeri Kimani who is the 1st respondent to this appeal, sought to have the order of stay of execution issued on 29th May, 2009 set aside and/or discharged, and the 1st respondent allowed to execute the decree in CMCC No. 956 of 2003. The 1st respondent further sought an order for release of monies which were deposited in CFC Stanbic Bank Kenyatta Avenue Branch in the joint names of the parties advocates, released to the 1st respondent.
2. The second application is a Notice of Motion filed on 6th October, 2009 in which Spin Knit Limited, who is the appellant in this appeal, sought orders for enlargement of the period within which to serve the record of appeal, and further that the record of appeal attached to its application be filed and served out of time.
3. On the 6th October, 2009 it was directed that the two applications be heard together. In support of the 1st respondent’s application, Mr. Gichachi maintained that the appellant had not complied with the conditions which were issued by this Court on 29th May, 2009 for the granting of an order of stay of execution. Mr. Gichachi maintained that the appellant had not given any good reasons for the failure to comply with the Court order.
4. Mr. Gichachi dismissed the appellant’s application for extension of time contending that it was not brought in good faith but was only intended to counter the 1st respondent’s application. He pointed out that the appellant only made an application for proceedings and judgment on 24th July, 2009, which was two months after the Court order. The application for the decree was not made until September, 2009. Mr. Gichachi therefore maintained that the appellant is not interested in pursuing the appeal, but is only using it to delay the respondent from enjoying the fruits of his judgment.
5. For the appellant it was maintained that efforts had been made to comply with the conditions which were given by the Court, but that it was not possible to file the record of appeal within the period given by the Court, as the typed proceedings, judgment and decree were only received by the appellant from the Court on 10th September, 2009 after the period had expired. Counsel for the appellant also stated from the Bar, that his client was required to pay further Court fees of Kshs.38695/= before action could be taken in typing the proceedings.
6. I have given due consideration to the two applications. It is evident that the appellant has been rather lax in pursuing copies of the proceedings, judgment and decree of the lower Court. This has delayed the preparation of the record of appeal resulting in the appellant’s failure to comply with the Court order of 29th May, 2009. That notwithstanding, the appellant has shown that it is still interested in pursuing this appeal. A copy of the record of appeal has already been prepared and same is annexed to the appellant’s application. The decretal sum of Kshs.826,104/= was also deposited into an interest earning account in compliance with the Court order of 29th May, 2009.
7. I find that despite the delay in filing the record of appeal, the record of appeal is now ready and the 1st respondent will not suffer any further prejudice. Moreover, it is in the interest of substantial justice, that time be extended so that the appellant can properly file the record of appeal to facilitate the determination of the appeal on merit. Accordingly, I order that the appellant shall duly file and serve the record of appeal within 15 days from the date hereof. The appellant shall pay costs of both applications to the 1st respondent in any event.
Dated and delivered this 6th day of November, 2009
H. M. OKWENGU
JUDGE
In the presence of: -
Kariuki holding brief for Gichachi for the appellant
Gicharu for the 1st respondent
Eric, court clerk