[2017] KEHC 3916 (KLR)
The court found that the applicants had sufficiently explained the delay in filing the appeal and that substantial loss may result if a stay is not granted. The court also considered the respondent's right to the fruits of her judgment. Accordingly, the court granted leave to appeal out of time and ordered a stay of...
Source-derived case information.
- Citation
- [2017] KEHC 3916 (KLR)
- Parties
- Applicant: Waburi Samuel; Applicant: Geoffrey Gichomo Mwangi; Respondent: Susan Kivyuyi Musyoka
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 175 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
- Outcome
- application allowed with conditions
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Security for Judgment, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Waburi Samuel
Applicant
Geoffrey Gichomo Mwangi
Applicant
Susan Kivyuyi Musyoka
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have provided sufficient reason for delay in filing the appeal out of time.
- 2 Whether a stay of execution should be granted pending appeal.
- 3 What conditions should be imposed for the grant of stay of execution.
Ratio Decidendi
The court found that the applicants had sufficiently explained the delay in filing the appeal and that substantial loss may result if a stay is not granted. The court also considered the respondent's right to the fruits of her judgment. Accordingly, the court granted leave to appeal out of time and ordered a stay of execution on condition that the applicants pay Kshs. 500,000 to the respondent and deposit the balance in an interest-earning account in the names of both advocates within 30 days. The costs of the application were ordered to abide by the outcome of the appeal.
Court Disposition
application allowed with conditions
Orders
- Leave to appeal out of time is granted; appeal to be filed within 30 days.
- Stay of execution granted on condition that applicants pay Kshs. 500,000 to the respondent within 30 days.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC No. 175 OF 2017
WABURI SAMUEL.......................................1ST APPLICANT
GEOFFREY GICHOMO MWANGI................2ND APPLICANT
VERSUS
SUSAN KIVYUVI MUSYOKA............................RESPONDENT
RULING
This is an application for stay of execution of the judgment of the lower court and for leave to file an appeal out of time. The judgment was delivered on 24th March, 2017. In that judgment the respondent was awarded Kshs. 1,500,000/= general damages, 1,750,530/= special damages, costs and interest.
The applicants wish to challenge that judgment on appeal but did not do so in time hence this application. The grounds are set out on the face of the application. There is also a supporting affidavit sworn by the Claims Director of Direct Line Assurance Company Limited which insured of the motor vehicle involved in the accident. The reasons for seeking the orders above are sufficiently set out in the said grounds and affidavit. The application is brought under Sections 3A, 79G and 95 of the Civil Procedure Act and Orders 22 Rule 22, 42 Rule 6, 50 Rule 6 and 51 Rules 1 and 3 of the Civil Procedure Rules.
The application is opposed and grounds of opposition have been filled. Both counsel have filed submissions which I have read. Some authorities have also been cited. I am persuaded that in the circumstances the delay in lodging the appeal has been sufficiently explained and that substantial loss may result if a stay is not given. However, I bear in mind that the respondent has a valid judgment in her favour and that she should not be denied the fruits of her judgment.
I am guided by the provisions of law cited alongside the authorities quoted by both counsel. I am persuaded that leave should be granted and accordingly direct that the appeal shall be filed within 30 days from today.
The applicants stated that they are ready to furnish reasonable security as directed by the court. I direct that they shall pay the respondent a sum of Kshs. 500,000/= and cause the balance to be held in an interest earning account in the names of both advocates on record. These two conditions shall be complied with within 30 days from today. The costs shall abide by the result of the appeal.
Dated, signed and delivered at Nairobi this 27th Day of July, 2017
A. MBOGHOLI MSAGHA
JUDGE