[2001] KEHC 439 (KLR)
The court found that the applicant's explanation for the 8-month delay in filing the appeal was scanty and less than satisfactory, as the alleged mix up in the filing system was not adequately substantiated. However, the court exercised its discretion to allow the applicant to have its day in court, despite the weak...
Source-derived case information.
- Citation
- [2001] KEHC 439 (KLR)
- Parties
- Applicant: United Insurance Company Ltd.; Respondent: Bernard Syendo Munyasya
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous 234 of ??
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time and Stay of Execution
- Outcome
- Application for enlargement of time and stay of execution allowed, subject to conditions.
- Legal Topics
- Extension of Time, Stay of Execution, Appeals Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
United Insurance Company Ltd.
Applicant
Bernard Syendo Munyasya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant has provided sufficient cause for enlargement of time to file an appeal out of time.
- 2 Whether a stay of execution of the lower court decree should be granted pending appeal.
- 3 Whether the applicant will suffer substantial loss if stay is not granted.
Ratio Decidendi
The court found that the applicant's explanation for the 8-month delay in filing the appeal was scanty and less than satisfactory, as the alleged mix up in the filing system was not adequately substantiated. However, the court exercised its discretion to allow the applicant to have its day in court, despite the weak justification for the delay. The court ordered that the memorandum of appeal be deemed filed and served, subject to payment of fees, and imposed conditions including the preparation and filing of a complete record of appeal within 21 days, deposit of the decretal sum in a joint interest earning account within 30 days, and payment of the respondent's costs before the next...
Court Disposition
Application for enlargement of time and stay of execution allowed, subject to conditions.
Orders
- The memorandum of appeal is deemed filed and served subject to payment of fees.
- A complete and proper record of appeal to be prepared and filed within 21 days from the date of the ruling.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
CIVIL MISCELLANEOUS APPLICATION NO. 234 OF 2000
UNITED INSURANCE COMPANY LTD. ::::::::::::::::::: APPLICANT
VERSUS
BERNARD SYENDO MUNYASYA :::::::::::::::::::::::: RESPONDENT
Coram: J. W. Mwera
Nganga Advocate for Applicant
Sila Advocate for Respondent
C.C. Muli
************************
R U L I N G
The applicant, the defendant in the lower court at Kangundo Senior Principal Magistrate’s court filed this application dated 10. 5.2000 under O 50 r.1, O 41 r. 4 Civil Procedure Rules and SS. 3A, 79 G Civil Procedure Act for order that time be enlarged in its favour to file its appeal out of time. It also prayed that the decree in the lower court case SRMCC 469/99 be stayed and then the draft memorandum of appeal annexed to this application be deemed filed and served. Mr. Ngang’a told the court that their intended appeal had probable chances of success (it was arguable?) and that the applicant will suffer substantial loss if a stay was not granted whereby it has to pay out Sh.178,870/=. It was not demonstrated how this would be a substantial loss to pay to the Respondent or for any other reason but that the applicant would provide security as ordered by the court when it grants the stay. Mr. Ng’ang’a further told the court that this court had unfettered discretion under S. 79G Civil Procedure Act to enlarge time and that failure to appeal in time was unpremidated, unintended and excusable.
From the affidavit in support of this application and what Mr. Ngang’a plus Mr. Sila said, there was a declaratory suit at Kangundo. The applicant entered appearance and filed a defence. Seeming the defence was struck out or something and judgement was entered on 30. 9.99. Time to appeal began to run for 30 days i.e. up to 30. 10. 99. No 10 appeal was lodged and nothing also took place until 4. 2.2000 when instructions to appeal issued. Again nothing happened until 10. 5.2000 when this application to enlarge time was lodged here. For about 8 months’ lapse, Mr. Sila argued, no explanation was given to the court to satisfy it that the enlargement of time is deserved. Mr. Ngang’a answered that there was a mix up in the filing system of his client – hence this rather too long a delay.
To be honest, rather too scanty and less than satisfactory cause is given as to why there was this 8-months delay in filing the appeal. What is this mix up in the filing system? Anyway may the applicant have its day in court much as Mr. Ngang’a did little 20 to demonstrate that their appeal was arguable. It is thus ordered that the memorandum of appeal herein be deemed filed and served subject to payment of fees. A complete and proper record of appeal to be prepared and filed for consideration in the next 21 days from the date hereof. The applicant to deposit the total decretal sum in a joint interest earning account of both lawyers within 30 days, and to pay the Respondent’s costs assessed at Sh.3000/= before the next listing. In default of any of these conditions will mean that leave to appeal out of time was never granted and the respondent will pursue any course he deems fit.
Orders accordingly.
Delivered on 18th January 2001.
J. W. MWERA
JUDGE