Automated Summary
Key Facts
The applicant, Bonito Hotels, sought leave to file an appeal out of time against a judgment in Bungoma CMCC No 109 of 2019, delivered on March 28, 2022. The appeal was filed one day late (May 16, 2022) due to alleged failure by the trial court to provide notice to the applicant's advocates. The court granted leave to appeal within 10 days and conditionally stayed execution of the decree pending appeal, requiring the applicant to deposit the full decretal sum into a joint interest-earning account within 45 days. The respondent, OBG Security Limited, opposed the application, arguing the delay was inexcusable and seeking security for the decree's performance.
Issues
- Whether the court should grant the applicant leave to file an appeal out of time due to delayed judgment delivery by the trial court, despite the six-month delay in filing the appeal. The applicant claims the delay was not deliberate and attributes it to the failure of the trial court to notify their advocates of the judgment's delivery.
- Whether the court should stay the execution of the warrant of attachment and sale pending the appeal and the applicant's request for leave to appeal out of time. The court considered factors such as the need to balance the interests of both parties, the requirement for security, and the risk of prejudice to the respondent if the stay is granted.
Holdings
- The court granted a stay of execution pending appeal, conditioned on the applicant depositing the entire decretal sum into a joint interest-earning account within 45 days, with the stay lapsing if not fulfilled.
- The court granted the applicant leave to file an appeal out of time within 14 days, noting the six-month delay was not inordinate and the applicant’s lack of notice of the judgment delivery.
Remedies
- The Applicant is granted leave to file and serve its memorandum of appeal within ten (10) days from the date of this ruling.
- The costs of the application shall abide in the intended appeal.
- An order of stay of execution of decree in Bungoma CMMC No 109 of 2019 is granted upon the applicant depositing the entire decretal sums into a joint interest earning account in the names of both Advocates for the parties within forty five (45) days from the date of this ruling.
Legal Principles
- The applicant had to demonstrate sufficient cause for the delay in filing the appeal and the respondent's ability to refund the decretal sum. The burden shifted to the respondent to prove their capacity to refund once the applicant established reasonable grounds for concern.
- The court applied the purposive approach to interpret the Civil Procedure Act's provisions in line with the overriding objective of justice and efficient court processes. This included balancing the interests of both parties to ensure the appeal process does not prejudice the successful litigant's right to the fruits of their judgment.
Precedent Name
- Ndubiu Gitahi v Warugongo
- Ratman vs Cumarasamy
- Stephen Boro Gitiha v Family Finance Building Society & 3 Others
- Alibbhai Musajee vs. Shariff Mohammed Al-Bet
- Caneland Ltd & 2 Others v Delphis Bank Ltd
- Mwaura Karuga t/a Limit Enterprises v Kenya Bus Services Ltd & 4 Others
- ABN Amro Bank, NK v Le Monde Foods Limited
- Daphne Parry v Murray Alexander Carson
- Feroz Begum Qureshi and Another v Maganbhai Patel and Others
- Bungoma High Court Misc Application No 42 of 2011 - James Wangalwa & Another v Agnes Naliaka Cheseto
- Kenya Shell Limited v Kibiru
- Savill vs Southend Health Authority
- Vishram Ravji Halai v Thornton & Turpin
- Kenya Posts & Telecommunications Corporation v Paul Gachanga Ndarua
- Machira T/A Machira & Co Advocates v East African Standard (No 2)
Cited Statute
- Civil Procedure Act
- Constitution of Kenya
- Civil Procedure Rules
Judge Name
DK Kemei
Passage Text
- For all the above reasons, I find and hold that the application for enlargement of time to file its memorandum of appeal is hereby allowed.
- The ordinary principle is that a successful party is entitled to the fruits of his judgement or of any decision of the court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled.
- An order of stay of execution of decree in Bungoma CMMC No 109 of 2019 is hereby granted upon the applicant depositing the entire decretal sums into a joint interest earning account in the names of both Advocates for the parties within forty five (45) from the date of this ruling failing which the stay shall lapse.