[2014] KEHC 276 (KLR)
The court found that the applicants had demonstrated sufficient cause for varying the condition regarding the deposit of security for stay of execution, given their limited financial resources and the logistical challenges in compiling the record of appeal within the original timeframe. By consent of the parties,...
Source-derived case information.
- Citation
- [2014] KEHC 276 (KLR)
- Parties
- Applicant: Stephen Muthamia & 2 Others; Respondent: Patrick Kinyua M'Iringo
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 13 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Vary Security for Stay and Extend Time for Appeal
- Outcome
- application allowed by consent, with variation of security deposit period and extension of time to appeal
- Judges
- FM Njoroge
- Legal Topics
- Stay of Execution, Security for Costs, Extension of Time, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Muthamia & 2 Others
Applicant
Patrick Kinyua M'Iringo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Vary Security for Stay and Extend Time for Appeal
Legal Issues
- 1 Whether the amount of security required for stay of execution should be reduced or the time for its deposit extended.
- 2 Whether the period for lodging and serving the intended appeal should be extended.
- 3 Whether the applicants have demonstrated sufficient cause for review or variation of the court's previous orders.
Ratio Decidendi
The court found that the applicants had demonstrated sufficient cause for varying the condition regarding the deposit of security for stay of execution, given their limited financial resources and the logistical challenges in compiling the record of appeal within the original timeframe. By consent of the parties, the court exercised its discretion to extend the period for depositing the required security from 30 to 90 days from the date of the original order. The court further extended the period for lodging and serving the intended appeal to 60 days from the same date. The orders were made to ensure that the right of appeal was not rendered illusory due to impracticable conditions, and...
Court Disposition
application allowed by consent, with variation of security deposit period and extension of time to appeal
Orders
- The applicant must deposit the sum of Kshs.400,000 in court within 90 days from 8.7.2014 as security before an order of stay of execution of the judgment in CMCC No.358 of 1998 can be formally operative and issued.
- Leave to appeal granted on 8.7.2014 or the consequential appeal will not operate as a stay of execution unless the above order is complied with, but is extended to 60 days from 8.7.2014.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC. CIVIL APPLICATION 13 OF 2014
STEPHEN MUTHAMIA & 2 OTHERS..................................................APPLICANTS
VERSUS
PATRICK KINYUA M'IRINGO..............................................................RESPONDENT
R U L I N G
This application is dated 28. 7.2014 and seeks orders that:
1. The application BE certified urgent and in view of its urgency, the same be admitted to hearing on priority basis and exparte at the first instance.
2. Pending service, hearing and determination of the application interpartes or further order of the Honourable Court the Honourable Court be pleased to review and or vary its orders of 8th July, 2014 by:-
(a) Reducing the amount of security to be deposited precedent to the formal operationalization and issuance of a stay of execution in Meru C.M.C.C. 358/1998 from Kshs. 400,000/= to Kshs. 50,000/= or such other lower and or affordable sum to the Honourable Court may be pleasing.
OR
Extending the period within which the security is to be deposited by the applicants to 90 days up from 30 days with effect from 8. 7.2014.
(b) Extending the period within which the intended appeal and the record of appeal is to be lodged and served from 30 days to 40 days or such other longer period as to the Court may appear fair and reasonable.
3. The Honourable Court in its discretion, be pleased to make any other and or further order for the purpose of attainment of the ends of justice.
4. Costs of the application do abide in the intended appeal.
The application is predicated upon the annexed affidavit of Stephen Muthamia Marete and on the grounds that:
(i) The applicants are officials of a self help group which does not possess sufficient financial resources to raise asecurity of Kshs.400,000/ within a limited period of 30 days.
(ii) In view of the age of the primary suit and the length of the proceedings therein coupled with the squeezed and limited resources and equipment at Meru Law Court it may not be possible to compile file and serve a record of appeal within 30 days as the proceedings of the Lower Court which will form a major part of the record of appeal will need to be typed and certified by the honourable Court.
(iii) If the orders sought are not granted, the Honourable Court's conditional order of stay and leave to lodge an appeal out of time shall go in vain.
(iv) The appellants/applicants will suffer substantial loss if the orders sought are not granted.
(v) The respondent stands to suffer absolutely no prejudice if the orders of review are made.
(vi) The application has been brought timeously, without undue delay and in good faith.
(vii) It is in the interest of justice that the order sought be granted.
When the application came up for interpartes hearing on 6. 8.2014, the parties by consent agreed that the alternative in prayer 2 be granted.
In the circumstances, condition 1 in this courts ruling dated 8. 7.2014 is varied to allow the applicant to deposit the apposite security within 90 days from 8. 7.2014. The effect is this:
1. The applicant must deposit the sum of Kshs.400,000/= in court within 90 days with effect from 8. 7.2014 as security before an order of Stay of Execution of the Judgment in CMCC No.358 of 1998 can be formally operative and issued.
2. Leave to Appeal granted on 8. 7.2014 or the consequential appeal will not operate as a stay of execution unless order 1 above is complied with but is extended to 60 days from 8. 7.2014.
Delivered in Open Court at Meru this 6th day of August, 2014 in the presence of:
Cc. Daniel/Lilian
Wamache h/b for Applicant
Miss Kiome for Respondent
P. M. NJOROGE
JUDGE