[2018] KEHC 2136 (KLR)
The court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, namely lack of communication with counsel and unawareness of the judgment until execution proceedings commenced. The court exercised its discretion to grant leave to appeal out of time. On the issue of stay...
Source-derived case information.
- Citation
- [2018] KEHC 2136 (KLR)
- Parties
- Applicant: Tasha Enterprises Ltd; Respondent: Ben Khaemba Barasa
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 78 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- Application allowed in part.
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Extension of Time, Decretal Amount, Road Traffic Accident
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tasha Enterprises Ltd
Applicant
Ben Khaemba Barasa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time.
- 2 Whether a stay of execution of the judgment and decree should be granted pending appeal.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, namely lack of communication with counsel and unawareness of the judgment until execution proceedings commenced. The court exercised its discretion to grant leave to appeal out of time. On the issue of stay of execution, the court held that a conditional stay was appropriate to protect the respondent's interests, requiring the applicant to deposit the decretal sum in a joint interest-earning account within 30 days, failing which execution would proceed.
Court Disposition
Application allowed in part.
Orders
- Leave granted to the applicant to file an appeal within 30 days from the date of the ruling.
- Stay of execution of the judgment and decree in Webuye CC. No. 187/2017 granted for 30 days on condition that the applicant deposits Kshs. 773,900 in a joint interest-earning account in the names of advocates on record within 30 days.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
CIVIL MISC. APPLICATION NO. 78 of 2018.
TASHA ENTERPRISES LTD............PLAINTIFF
VERSUS
BEN KHAEMBA BARASA............DEFENDANT
RULING.
The application Tasha Enterprises(K) Ltd filed this application dated 11th June 2018 against the Respondent Ben Khaemba Barasa seeking;
1) Leave to file appeal out of time.
2) Stay of execution of the Judgment and decree inWebuye CC. 187/2017.
The grounds of the application are on the face of the application. The application is supported by this affidavit of Lucas Ndung the Office Administrator of the Applicant Company. He depones that the Respondent sued the applicant in Webuye CC. No. 187/2017 claiming damages for personal injuries sustained in a road traffic Accident. That Judgment was entered against the appellant for Kshs.773,900/=. They were not aware of the Judgment until a proclamation was made on their property. He now prays for leave to file appeal out time and is willing to deposit the decretal amount in Court or a Joint account in the names of the Counsels on record. Mr. Mukisu for the Respondent opposes the application and submits the application offends Order 9 rule 9 as this matter is filed in a Misc. Application and not on the main file.
I have considered the application and submissions. The applicant has explained why it was unable to file appeal within stipulated time basically because of lack of communication with counsel on record. In my view they have explained the delay in filing appeal. I grant this leave to file an appeal within 30 days from today date.
On the issue of stay of execution of decree, I grant the stay for 30 days on condition that the applicant/defendant do deposit within 30 days the sum of Kshs.773,900/= in the Joint interest earning account in the names of Advocate on record in Webuye CC. No. 187/17. In default of such deposit, execution to proceed.
Dated and Deliveredat Bungoma on this 8th day of November, 2018.
S.N. RIECHI
JUDGE.