[2018] KEHC 5587 (KLR)
The court found that although the applicants' claim of late knowledge of the judgment was factually incorrect, they retained the right to change counsel and seek extension of time. The court exercised its discretion to allow the new advocates to come on record and granted an extension of 30 days to file the appeal....
Source-derived case information.
- Citation
- [2018] KEHC 5587 (KLR)
- Parties
- Plaintiff: William Mweli Muli & Agnes Wausi Mwele (Suing for and on behalf of the family and estate of Esther Mbithe Mwele); Defendant: Wilson Wanyoike Njoroge; Defendant: Kirigun Stanley; Defendant: Northern Construction Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 193 of 2016
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution and Extension of Time to Appeal
- Outcome
- Application allowed in part, with conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Extension of Time, Change of Advocate, Appeal Rights, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
William Mweli Muli & Agnes Wausi Mwele (Suing for and on behalf of the family and estate of Esther Mbithe Mwele)
Plaintiff
Wilson Wanyoike Njoroge
Defendant
Kirigun Stanley
Defendant
Northern Construction Limited
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution and Extension of Time to Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution of the judgment pending appeal.
- 2 Whether the applicants should be granted extension of time to file and serve the Notice of Appeal.
- 3 Whether the firm of J. Makumi & Company Advocates should be allowed to come on record for the applicants after judgment.
Ratio Decidendi
The court found that although the applicants' claim of late knowledge of the judgment was factually incorrect, they retained the right to change counsel and seek extension of time. The court exercised its discretion to allow the new advocates to come on record and granted an extension of 30 days to file the appeal. A stay of execution was also granted, conditional upon payment of Kshs. 1,025,600/= to the plaintiffs within 30 days. The court emphasized that commitments made by previous advocates regarding settlement remained binding on the applicants. The orders were made to balance the applicants' right of appeal with the plaintiffs' right to enjoy the fruits of their judgment, and...
Court Disposition
Application allowed in part, with conditions.
Orders
- Time to file the appeal is extended by 30 days from the date of this ruling.
- There shall be a stay of execution on condition that the applicants pay the plaintiffs the sum of Kshs. 1,025,600 within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 193 OF 2016
WILLIAM MWELI MULI & AGNES WAUSI MWELE(Suing for and on
behalf of the family and estate ofESTHER MBITHE MWELE)....................PLAINTIFFS
VERSUS
WILSON WANYOIKE NJOROGE..........................................................1ST DEFENDANT
KIRIGUN STANLEY..................................................................................2ND DEFENDANT
NORTHERN CONSTRUCTION LIMITED............................................3RD DEFENDANT
RULING
This is an application dated 16th March, 2018 for the substantive orders that there be a stay of execution of the judgment delivered on 7th December, 2016 pending the hearing and determination of the applicants’ intended appeal to the Court of Appeal. There is also a prayer for extension of time to file and serve Notice of Appeal and that the firm of J. Makumi & Company Advocates be allowed to come onto record in place of the firm of Kairu & Mc court Advocates. The application is brought under Order 9 Rule 9, Order 42 Rule 6, Order 50 Rule 6, Order 51 Rule 1 and 3 of the Civil Procedure Rules; Sections 3A, 95 of the Civil Procedure Act and Section 7 of the Appellate Jurisdiction Act, Cap 9 Laws of Kenya.
The reasons therefor have been set out and there is also a supporting affidavit sworn by the 1st defendant herein. The application is opposed and there is a replying affidavit sworn by the 2nd plaintiff. Counsel agreed that the application shall be decided based on affidavit evidence.
I have considered the grounds and rival affidavits by the parties. The record will show that an earlier application was filed by the firm of Kairu & Maccourt Advocates on 8th February, 2018 which appears to have been abandoned. That application sought the same orders.
It may not be factually true that the applicants came to learn of the judgment on 16th February, 2018 from their insurers. The applicants were represented by the firm of Kairu and Mccourt Advocates who were instructed by the insurance company. A party represented by counsel is deemed to know about the proceedings and outcome thereof, when those proceedings are conducted and determined in the presence of counsel. By their own admission, they were represented and that is why I have said it is factually incorrect that they came to know about the judgment on 8th February, 2018.
That notwithstanding, they have a right to change counsel and representation; therefore leave is granted for the firm of J. Makumi & Company Advocates to come onto record on behalf of the applicants. The orders sought by the applicants are discretionary. That discretion has to be exercised judicially taking into consideration the interests of both parties.
The plaintiffs have a judgment in their favour. At the same time, the applicants have a right of appeal. The applicants submit that if leave is not granted, they are likely to suffer loss and if stay of execution is not allowed the appeal shall be rendered nugatory.
Communication from the previous advocates on record to the advocates for the plaintiffs, relating to settlement of the claim by the applicants, committed the applicants to pay a sum of Kshs. 1,025,600/=. That commitment has not been contradicted or denied and therefore remains binding, notwithstanding it was made by the previous advocates.
On the other hand, the plaintiffs admit part settlement of the decretal sum. Without any evidence to show that fact, the court can only assume that it is the insurance company that has settled its liability under the policy.
That being the case, and the applicants having committed themselves to abide by any conditions set, I make the following orders;
Time to file the appeal is extended by 30 days from the date of this ruling. There shall be a stay of execution on condition that the applicants pay the plaintiffs the sum of Kshs. 1,025,600/= within 30 days from the date of the ruling. In default execution shall proceed.
The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 14th Day of June, 2018.
A. MBOGHOLI MSAGHA
JUDGE