[2011] KEHC 868 (KLR)
The court found that the applicants were not notified of the judgment and only became aware upon execution proceedings. The delay in filing the application for leave to appeal was not inordinate, as the application was filed less than two months after judgment. The applicants had complied with the order to deposit...
Source-derived case information.
- Citation
- [2011] KEHC 868 (KLR)
- Parties
- Respondent: Wakuthi John Ndambiri; Applicant: Charles Mundia; Applicant: James Wairegi Mwangi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 170 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Enlarge Time to File Appeal and for Stay of Execution
- Outcome
- application allowed in part
- Legal Topics
- Extension of Time, Stay of Execution, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wakuthi John Ndambiri
Respondent
Charles Mundia
Applicant
James Wairegi Mwangi
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application to Enlarge Time to File Appeal and for Stay of Execution
Legal Issues
- 1 Whether the applicants should be granted enlargement of time to file an appeal out of time.
- 2 Whether the draft memorandum of appeal should be deemed as duly filed and served upon payment of requisite filing fees.
- 3 Whether stay of execution pending appeal should be granted.
Ratio Decidendi
The court found that the applicants were not notified of the judgment and only became aware upon execution proceedings. The delay in filing the application for leave to appeal was not inordinate, as the application was filed less than two months after judgment. The applicants had complied with the order to deposit half the decretal sum. The court exercised its discretion to enlarge the time for filing the appeal and deemed the draft memorandum of appeal as duly filed upon payment of requisite fees. Stay of execution was granted pending determination of the appeal, as the applicants had met the necessary conditions and there was no substantial opposition from the respondent.
Court Disposition
application allowed in part
Orders
- Time for filing appeal is enlarged to cover the period up to the date of the application.
- The draft memorandum of appeal is deemed duly filed and served upon payment of requisite filing fees within 7 days.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISC. APPLICATION NO. 170 OF 2011
WAKUTHI JOHN NDAMBIRI…………......................………….. PLAINTIFF/RESPONDENT
VERSUS
CHARLES MUNDIA …………………...................………… 1ST DEFENDANT/APPLICANT
JAMES WAIREGI MWANGI…………........................……… 2ND DEFENDANT/APPLICANT
R U L I N G
This is the Applicant’s application dated 30/8/2011 for the court to enlarge time for them to file Appeal.
-They also pray that the Draft Memorandum of Appeal be deemed as duly filed and served upon payment of requisite filing fees.
-There be stay of execution pending determination of the application and the intended appeal.
The application is supported by the grounds and the supporting affidavit of the 1st Defendant/Applicant.
I have gone through the record several times and I have not seen any Replying Affidavit nor Grounds of Opposition filed by the Plaintiff/Respondent, so the application is generally unopposed.
The Applicants say they were not notified of the delivery of Judgment on 5/7/2011. It’s only when served with warrants of execution that they realized Judgment had been delivered. The Applicants goods were proclaimed on 23/8/2011 as shown by one of the annextures herein.
An order directing the Applicants to deposit ½ the decretal sum has been complied with. Mr. Kiama for Respondent opposed the Application saying it was an afterthought since the Applicants were well represented by Counsel. And that there was no Ground proved showing why there should be stay.
Under Order 50 rule 6 Civil Procedure Rules this court has power to enlarge time for doing a particular act for which a limited time has been fixed. By the time of filing this Application the time of filing appeal had lapsed.
The Applicant has explained of none communication of the outcome of EMBU C.M. CC No.144 of 2007 to them by their advocate then. If Judgment was delivered on 5/7/2011 and this Application was filed on 1/9/2011, I do not consider it to be inordinate delay. I see that there is a Draft Memorandum of Appeal already annexed which the Applicant through prayer 2 of the Notice of Motion dated 30/8/2011 that it be deemed as duly filed and served upon payment of the requisite filing fees.
I therefore grant the Applicant prayer 1 by enlarging the time of filing his Appeal to the time already covered. Prayer 2 is also granted and the payment of filing fees should be complied with within 7 days of this Ruling.
Prayer 4 is asking for stay pending the hearing of intended Appeal. Now that the Applicant has been allowed to file Appeal out of time and the draft Memo of Appeal deemed as filed then the remaining process should move with speed to have the records prepared.
Already deposited in court is half the decretal sum. Since I have not seen the lower court record I would not be in a position to deal with any of the issues related to the decretal sum.
I therefore grant stay of execution pending the determination of the Appeal.
Costs to the Respondent.
Orders accordingly.
DELIVERED, SIGNED AND DATED AT EMBU THIS 15TH DAY OF NOVEMBER 2011.
H.I. ONG’UDI
JUDGE