[2014] KEHC 2594 (KLR)

[2014] KEHC 2594 (KLR)

The court found that the appellant filed the appeal out of time without seeking leave as required by Section 79G of the Civil Procedure Act. Consequently, the appeal was incompetent. Since Order 42 Rule 6 of the Civil Procedure Rules only allows for a stay of execution where there is a competent appeal, the court held that it could not grant a stay in the absence of such an appeal. The court therefore struck out both the appeal and the application for stay, emphasizing that the appellant must first seek leave to appeal out of time before any substantive application can be entertained.

Citation
[2014] KEHC 2594 (KLR)
Parties
Appellant: W M O; Respondent: M O
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
3 October 2014
Case Number
Civil Appeal 7 of 2014
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Outcome
Application and appeal struck out as incompetent.
Judges
LK Kimaru
Legal Topics
Appeal Out of Time, Stay of Execution, Custody of Children, Leave to Appeal, Competency of Appeal
Source Language
English
Civil Procedure Family and Children Appeal Out of Time Stay of Execution Custody of Children Leave to Appeal Competency of Appeal

Case Brief

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Parties

W M O

Appellant

M O

Respondent

Procedural Posture

Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether the appeal filed by the appellant was competent having been filed out of time without leave of the court.
  2. 2 Whether the court could grant a stay of execution pending the hearing and determination of an incompetent appeal.

Ratio Decidendi

The court found that the appellant filed the appeal out of time without seeking leave as required by Section 79G of the Civil Procedure Act. Consequently, the appeal was incompetent. Since Order 42 Rule 6 of the Civil Procedure Rules only allows for a stay of execution where there is a competent appeal, the court held that it could not grant a stay in the absence of such an appeal. The court therefore struck out both the appeal and the application for stay, emphasizing that the appellant must first seek leave to appeal out of time before any substantive application can be entertained.

Court Disposition

Application and appeal struck out as incompetent.

Orders

  • The purported appeal and the Notice of Motion dated 13th January 2014 are struck out.
  • The respondent shall have the costs of the application and of the appeal.