[2024] KEHC 896 (KLR)
The court found that the applicants had demonstrated sufficient cause to warrant the grant of leave to appeal out of time and a stay of execution of the decree. However, the stay was made conditional upon the applicants paying Kshs.100,000 to the respondents through their advocates within 21 days as part of the...
Source-derived case information.
- Citation
- [2024] KEHC 896 (KLR)
- Parties
- Applicant: Tabitha Wandera; Applicant: Mwangi Daniel Gatithu; Respondent: Stephen Chahaji Lumwaji; Respondent: Daniel Mbugua Njoroge
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E003 of 2024
- 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
- RE Aburili
- Legal Topics
- Stay of Execution, Leave to Appeal Out of Time, Security for Due Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tabitha Wandera
Applicant
Mwangi Daniel Gatithu
Applicant
Stephen Chahaji Lumwaji
Respondent
Daniel Mbugua Njoroge
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 applicants should be granted leave to appeal out of time against the judgment and decree of the lower court.
- 2 Whether a stay of execution of the decree should be granted pending the intended appeal.
- 3 What conditions, if any, should be imposed regarding security for the due performance of the decree.
Ratio Decidendi
The court found that the applicants had demonstrated sufficient cause to warrant the grant of leave to appeal out of time and a stay of execution of the decree. However, the stay was made conditional upon the applicants paying Kshs.100,000 to the respondents through their advocates within 21 days as part of the award, and depositing the balance of the decretal sum plus costs in a joint interest-earning account held by both parties' advocates within the same period. Failure to comply with these conditions would result in execution issuing. The court balanced the interests of both parties by ensuring the respondent's right to the fruits of judgment is protected while preserving the...
Court Disposition
Application allowed with conditions.
Orders
- Leave granted to file and serve a Memorandum of Appeal out of time within 14 days.
- Stay of execution of decree in Kisumu CMCC No. 555 of 2021 granted pending appeal, subject to payment of Kshs.100,000 to the respondent through their advocate within 21 days.
Full Case Text
Judgment text and source record
28 paragraphs
Wandera & another v Lumwaji & another (Miscellaneous Civil Application E003 of 2024) [2024] KEHC 896 (KLR) (6 February 2024) (Ruling)
Neutral citation: [2024] KEHC 896 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Civil Application E003 of 2024
RE Aburili, J
February 6, 2024
Between
Tabitha Wandera
1st Applicant
Mwangi Daniel Gatithu
2nd Applicant
and
Stephen Chahaji Lumwaji
1st Respondent
Daniel Mbugua Njoroge
2nd Respondent
Ruling
1. The Applicant’s application dated January 12, 2024 seeks for orders of stay of execution of decree in Kisumu CMCC No. E555 of 2021 pending hearing and determination of the intended appeal.
2. In addition, the applicants sought for leave to appeal out of time from the judgment and decree of the lower court in the above matter which was rendered on September 28, 2023.
3. The application is not opposed save for the conditions on the depositing of security for the due performance of decree as contemplated in order 42 rule 6(2) of the Civil Procedure Rules.
4. Whereas the Respondent urges for payment of ½ the decretal sum as awarded and the balance be deposited in an interest earning account to be held by both parties’ counsel, the Applicant proposed to give a Bank Guarantee or to pay Kshs.60,000 because the injuries sustained by the Respondent were soft tissue and that the applicant is challenging quantum of damages awarded.
5. I have considered the arguments by both counsel on the matter and especially the conditional stay. I make the following orders:1. The Applicant is hereby granted leave to file and serve a Memorandum of Appeal out of time. The appeal shall be filed and served within 14 days of today.2. There be and is hereby granted a stay of execution of decree in Kisumu CMCC No. 555 of 2021 pending the filing, hearing and determination of the intended appeal subject to the applicant herein paying to the Respondent through their advocate Ms. Staussi Asunah & Oluoch & Company Advocates, a sum of Kshs.100,000 being part of the award of damages made in the lower court, within 21 day of today. The balance thereof plus costs of the suit in the lower court shall be deposited in a joint interest earning account to be opened in a reputable Commercial Bank and to be held by Ms. Kimondo Gachoka & Company Advocates and Staussi Asunah & Oluoch and Company Advocates until further orders of this court; and within 21 days of today.3. In default, execution to issue.
6. This Ruling and order to be typed and issued.
7. Costs shall be in the appeal.
8. This file is hereby closed.
9. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 6TH DAY OF FEBRUARY, 2024R. E. ABURILI.................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR