[2012] KEHC 5088 (KLR)
The court found that the applicant was not served with notice of judgment, making the delay in filing the appeal excusable. The applicant's willingness to deposit the decretal sum in a joint interest-earning account as security further satisfied the court that the interests of justice would be served by granting the...
Source-derived case information.
- Citation
- [2012] KEHC 5088 (KLR)
- Parties
- Applicant: UAP Provincial Insurance Company; Respondent: Maurice Philemon Akasa; Respondent: Phoebe Andeso Akasa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 22 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application allowed
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Service of Judgment Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
UAP Provincial Insurance Company
Applicant
Maurice Philemon Akasa
Respondent
Phoebe Andeso Akasa
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 decree should be granted pending appeal.
- 3 Whether the applicant was properly served with notice of judgment.
Ratio Decidendi
The court found that the applicant was not served with notice of judgment, making the delay in filing the appeal excusable. The applicant's willingness to deposit the decretal sum in a joint interest-earning account as security further satisfied the court that the interests of justice would be served by granting the orders sought. Consequently, the court allowed the application, granting leave to file the appeal out of time and a stay of execution pending the determination of the proposed appeal, subject to the condition that the decretal sum be deposited in a joint account operated by both parties' advocates within 21 days.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file an appeal out of time within 21 days.
- A stay of execution of the decree is granted pending the hearing and determination of the proposed appeal.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
MISC. CIVIL APPLICATION NO.22 OF 2011
UAP PROVINCIAL INSURANCE COMPANY..................... APPLCIANT
VERSUS
MAURICE PHILEMON AKASA
PHOEBE ANDESO AKASA................................................ RESPONDENT
RULING
Notice of Motion dated 3/2/2011 was heard and ruling to be delivered on 31/5/2011 by this court. Unfortunately the judge fell sick and was hospitalized for a long time. Hence the very long delay in finalizing the ruling. I deeply send my apology.
The prayers sought are leave to file appeal out of time, interim stay of execution of the decree passed on 11/11/2010 in CMCC 412/2006, and appeal proposed pending a stay be granted and leave be granted to file Memorandum of Appeal attached and that costs be in the cause.
There are 15 grounds pleaded:
The Judgment in lower court would be delivered on notice. No notice was given to Applicants counsel for delivery of judgment and the applicant is dissatisfied with judgment delivered on 11/2/2011 delay was excusable and if leave is not granted Applicant will suffer loss and damage. The Applicant is ready to deposit the decretal sum in an interest earning account and that granting the orders will be in the interest of justice.
The application is supported by affidavit of Maryanne Mungara claims manager of the Applicant. She swears that Notice to take judgment was never served.
I have considered application and the authorities offered. I have considered the considerable delay caused by courts absence. Since the Applicant has offered security by depositing decretal sum in an account to be operated by the two advocates, it is my view that application be allowed and orders be granted as prayed.
The Applicant shall call on the advocate for the Respondent and arrange to open a joint account in a reputable bank in the names of the two advocates within 21 days from today. Leave is granted to Applicant to file appeal as prayed within the next 21 days and stay of execution is hereby granted pending the hearing and determination of the proposed appeal.
Costs shall be in the cause.
Orders accordingly.
Dated and delivered at Nairobi this 8th day of March 2012.
J.N. KHAMINWA
JUDGE