[2023] KEHC 2715 (KLR)
The court found that the applicant was not notified of the judgment's delivery and only became aware upon receipt of a notice of taxation. While parties have a duty to follow up on their cases, the opposing party also has a duty to notify the other side of the existence of any judgment, decree, or order. The court...
Source-derived case information.
- Citation
- [2023] KEHC 2715 (KLR)
- Parties
- Applicant: Uwowo Savings and Credit Society Limited; Respondent: Erick Alumasa Agasa (Suing as Administrator of the Estate of Collins Jumba)
- Court
- High Court
- Court Station
- High Court at Vihiga
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E003 of 2021
- Procedural Posture
- Miscellaneous Civil Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- Application allowed with conditions.
- Judges
- WM Musyoka
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Service of Judgment, Appeal Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Uwowo Savings and Credit Society Limited
Applicant
Erick Alumasa Agasa (Suing as Administrator of the Estate of Collins Jumba)
Respondent
Procedural Posture
Miscellaneous Civil Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant is entitled to stay of execution of the judgment pending appeal.
- 2 Whether leave to file an appeal out of time should be granted to the applicant.
- 3 Whether the delay in filing the appeal was justified.
Ratio Decidendi
The court found that the applicant was not notified of the judgment's delivery and only became aware upon receipt of a notice of taxation. While parties have a duty to follow up on their cases, the opposing party also has a duty to notify the other side of the existence of any judgment, decree, or order. The court was satisfied that the delay in filing the appeal was sufficiently explained and not inordinate. The memorandum of appeal disclosed reasonable and arguable grounds. Accordingly, the court exercised its discretion to grant both stay of execution and leave to appeal out of time, subject to the applicant depositing half of the decretal amount in court within 30 days.
Court Disposition
Application allowed with conditions.
Orders
- Stay of execution of the judgment in Vihiga PMCCC No. 74 of 2019 granted pending appeal, subject to the applicant depositing half of the decretal amount in court within 30 days.
- Leave to file appeal out of time granted; appeal to be filed within 30 days.
Full Case Text
Judgment text and source record
21 paragraphs
Uwowo Savings and Credit Society Limited v Agasa (Suing as Administrator of the Estate of Collins Jumba) (Miscellaneous Civil Application E003 of 2021) [2023] KEHC 2715 (KLR) (24 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2715 (KLR)
Republic of Kenya
In the High Court at Vihiga
Miscellaneous Civil Application E003 of 2021
WM Musyoka, J
March 24, 2023
Between
Uwowo Savings and Credit Society Limited
Applicant
and
Erick Alumasa Agasa (Suing as Administrator of the Estate of Collins Jumba)
Respondent
Ruling
1. The application for determination is dated January 18, 2021. It principally seeks stay of execution of a judgment, in Vihiga PMCCC No. 74 of 2019, of July 30, 2021, pending appeal, and leave to file appeal out of time.
2. The applicant avers that the judgment was delivered on notice, and it was not notified of its delivery, and only got to know of its existence when it received a notice of taxation. It says that delay in filing appeal was occasioned by that. It contends that liability and quantum, as assessed by the court, were excessive, and that the proposed appeal raises triable issues.
3. In response, the respondent argues that the application was bereft of merit, for 5 months had lapsed between date of delivery of judgment and the filing of the application.
4. Directions were given on March 10, 2022, for disposal of the application by way of written submissions. Both sides have filed their respective written submissions. I have read through them and noted the arguments.
5. I note that the respondent does not controvert the submission that the judgment was delivered on notice. It is not indicated that existence of the judgment was brought to the attention of the applicant by the respondent. Of course, parties have a duty to follow up on their cases in court, but the opposite side also have a duty to notify the other side of existence of any judgment or decree or order.
6. The applicant is entitled to its day in court. I note that the memorandum of appeal discloses reasonable and arguable grounds. I am persuaded that this is a proper case for grant of the orders sought. Consequently, I do hereby allow the application dated January 18, 2021, subject to half of the decretal amount being deposited in court within 30 days. Leave to appeal is for 30 days.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 24THDAY OF MARCH 2023WM MUSYOKAJUDGEErick Zalo, Court Assistant.Ms. Tesot, instructed by Kanyi Kimondo & Company, Advocates for the applicant.Ms. Anono, instructed by Mukisu & Company, Advocates for the respondent.