[2024] KEHC 15420 (KLR)
The court found that the delay in filing the appeal was not inordinate or deliberate, as it was occasioned by ongoing negotiations and internal issues with the respondent's insurer. The applicant had made efforts to prevent attachment of its property and had proposed to deposit the decretal sum in a joint account,...
Source-derived case information.
- Citation
- [2024] KEHC 15420 (KLR)
- Parties
- Applicant: Transcounty Shuttle Ltd; Respondent: Philip Onyango Obungu
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E356 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application allowed with conditions
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Appeal Procedure, Quantum of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Transcounty Shuttle Ltd
Applicant
Philip Onyango Obungu
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 appeal out of time against the decree in Kisumu SCC No. E107 of 2024.
- 2 Whether a stay of execution of the decree should be granted pending the hearing and determination of the intended appeal.
- 3 Whether the applicant has demonstrated sufficient cause for delay and risk of substantial loss.
Ratio Decidendi
The court found that the delay in filing the appeal was not inordinate or deliberate, as it was occasioned by ongoing negotiations and internal issues with the respondent's insurer. The applicant had made efforts to prevent attachment of its property and had proposed to deposit the decretal sum in a joint account, which was not opposed by the respondent. Although no substantial loss was demonstrated, the court held that the interests of justice required granting the applicant an opportunity to ventilate its grievances on appeal and to preserve the subject matter by granting a stay of execution. The court balanced the interests of both parties by making the stay conditional upon payment of...
Court Disposition
application allowed with conditions
Orders
- Leave to appeal out of time is granted; appeal to be filed and served within 10 days.
- Stay of execution of decree in Kisumu SCC No. E107 of 2024 is granted pending appeal, conditional upon the applicant paying half the decretal sum to the respondent and depositing the balance in a joint fixed interest earning account within 21 days.
Full Case Text
Judgment text and source record
28 paragraphs
Transcounty Shuttle Ltd v Obungu (Miscellaneous Civil Application E356 of 2024) [2024] KEHC 15420 (KLR) (5 December 2024) (Ruling)
Neutral citation: [2024] KEHC 15420 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Civil Application E356 of 2024
RE Aburili, J
December 5, 2024
Between
Transcounty Shuttle Ltd
Applicant
and
Philip Onyango Obungu
Respondent
Ruling
1. The application dated 4th November 2024 seeks leave to appeal out of time and stay of execution of decree issue in Kisumu SCC No. E107 of 2024 delivered on 24th September 2024 pending hearing and determination of the intended appeal.
2. The application which has been argued orally is opposed by the Respondent who filed a replying affidavit and a supplementary affidavit.
3. This court has considered the arguments by both parties and the fact that the delay in filing of the appeal is not inordinate and that there is no evidence that it was deliberate.
4. There is no dispute that parties were negotiating for a settlement and that the Respondents insurer had internal issues which ended up in court making it impossible to settle claims whether negotiated or otherwise.
5. The applicant in my view, has made concerted efforts to save his property from being attached by approaching the courts on all fronts and cannot be faulted for that as legal processes are complex and more often than not, a party can suffer an injustice because of no fault of their own.
6. The appeal is against quantum of damages of Kshs.200,000 which is said to be exorbitant and the applicant has undertaken to deposit it in a joint interest earning account, which proposal is not denied by the Respondent Decree holder.
7. Although no substantial loss has been demonstrated, I am satisfied that in the interest of justice, the applicant ought to be accorded the opportunity to ventilate its grievances on appeal and preserve the subject matter of the appeal by granting a stay pending appeal as intended, noting that Order 42, Rule 6(2) of the Civil Procedure Rules does not bar this court from hearing a similar application which is pending in the lower court or which has been declined by the lower court.
8. I must however, balance the interests of both parties so that the Respondent decree holder does not carry with him a barren decree all along.
9. In the premises, I grant the applicant leave to appeal out of time and direct that the appeal be filed and served within 10 days of today.
10. Pending the filing, hearing and determination of the intended appeal, I grant stay of execution of decree in Kisumu SCC No. E167 of 2024 conditional upon the Applicant paying to the Respondent half of the decretal sum inclusive of costs and depositing the balance in a joint fixed interest earning account to be opened by advocates or both parties to this appeal within 21 days of today and in default, execution to issue.
11. Costs shall be in the appeal.
12. Ruling to be typed forthwith.
13. This file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 5TH DAY OF DECEMBER, 2024R. E. ABURILIJUDGE