[2005] KEHC 882 (KLR)
The court found that the appellant failed to comply with the conditions for filing the appeal out of time, specifically by filing the appeal late and failing to set it down for hearing. The appellant also failed to respond appropriately to the application, as no affidavit was filed and the grounds of opposition were...
Source-derived case information.
- Citation
- [2005] KEHC 882 (KLR)
- Parties
- Appellant: Zacharia Mbugua Kariuki; Respondent: Catherine Wambui Kariuki
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 117 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal or Vacate Stay of Execution
- Outcome
- Order of stay of execution discharged; attachment of appellant's salary for maintenance to continue; appellant to bear costs of the application.
- Legal Topics
- Maintenance Orders, Stay of Execution, Appeal Out of Time, Child Welfare
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zacharia Mbugua Kariuki
Appellant
Catherine Wambui Kariuki
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal or Vacate Stay of Execution
Legal Issues
- 1 Whether the appellant complied with the conditions set for filing the appeal out of time.
- 2 Whether the order of stay of execution should be vacated due to non-compliance.
- 3 Whether the appeal should be struck out for failure to comply with court directions.
Ratio Decidendi
The court found that the appellant failed to comply with the conditions for filing the appeal out of time, specifically by filing the appeal late and failing to set it down for hearing. The appellant also failed to respond appropriately to the application, as no affidavit was filed and the grounds of opposition were filed late and in contravention of the Civil Procedure Rules. Given these failures, the court exercised its discretion not to strike out the appeal but to discharge the order of stay of execution. The attachment of the appellant's one third basic salary for the maintenance of the children, as ordered by the trial court, was reinstated pending the hearing and determination of...
Court Disposition
Order of stay of execution discharged; attachment of appellant's salary for maintenance to continue; appellant to bear costs of the application.
Orders
- The order of stay of execution granted on 29th June, 2005 is discharged.
- The order of attachment of the appellant's one third basic salary as ordered by the trial court shall continue to operate pending the hearing and determination of the appeal.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL 117 OF 2005
ZACHARIA MBUGUA KARIUKI………………….……….…..APPELLANT
VERSUS
CATHERINE WAMBUI KARIUKI…………………………..RESPONDENT
RULING
On 29th June, 2005 this court granted leave to the appellant to file an appeal out of time. It further ordered that the memorandum of appeal be filed within three days from the aforesaid date and thereafter the appellant was to take all the necessary steps so that the appeal could be heard and finalised within 30 days from the date of the said ruling. The registry was even directed to give this matter a date on priority basis. This was because the issues in question in the appeal relate to the welfare of some minor children of the parties herein.
The applicant stated that the appellant failed to meet the aforesaid conditions in that the appeal was filed on 26/7/2005 and has not even been set down for hearing. Certified copies of the proceedings in the subordinate court were procured by the applicant and had then been forwarded to the appellant’s advocates on 16th July, 2005. The applicant therefore asserted that the appellant had no reason for delaying the filing of the appeal while he was enjoying an order of stay of execution of the lower court’s order by which his one third salary was attached for the maintenance of his children with the applicant. The children were said to be currently out of school due to lack of school fees. One of the children was also said to be sickly and required to be attended to by a cardiologist and had been booked for medical examination at Kenyatta National Hospital on 5th October, 2005. Money was therefore required for his medication.
For the said reasons, the applicant urged the court to strike out the appeal or in the alternative vacate the order of stay of execution granted on 29th June, 2005.
The appellant did not file any affidavit in response to the applicant’s affidavit but did file some grounds of opposition. The said grounds were filed one day prior to the hearing date of the said application in contravention of Order L Rule 16of the Civil Procedure Rules. The applicant’s counsel urged the court to disregard the said grounds and deem the application as being unopposed. Mr. Gitonga for the appellant did not make any effort to explain why the grounds of opposition were filed late or why no replying affidavit was filed and I must therefore assume that there were no good reasons for so doing and consequently, I will disregard the grounds of opposition on record.
Considering that the appellant has already filed his appeal, albeit late, I will not strike it out but will discharge the order of stay of execution, which I hereby do, with the result that pending the hearing and determination of the appeal, the order of attachment of the appellant’s one third basic salary as ordered by the trial court shall continue to operate. The appellant shall bear the costs of this application.
DATED, SIGNED AND DELIVERED at Nakuru this 13th day of September, 2005.
D. MUSINGA
JUDGE
13/9/2005
Ruling delivered in open court in the presence of Kr. Kiplenge holding brief for
Mr. Gitonga for the appellant and Mr. Machage for the applicant.
D. MUSINGA
JUDGE
23/9/2005