Automated Summary
Key Facts
The case involves Tobias Omondi Lwania & Consleta Adhiambo Onyango (legal representatives of the estate of Monica Anyango-deceased) as plaintiffs versus Bethuel Mnyaka Kimbio as defendant. The applicant (defendant) sought leave to file an appeal out of time against a 2020 judgment in Mombasa Senior Principal Magistrate Court (Civil Suit No.2351 of 2018) due to delayed instructions from their insurer, Directline Assurance Company Ltd. The court dismissed the application, finding the three-month delay inexcusable and the appeal an afterthought, as a declaratory suit against the insurer had already been filed. The application for a stay of execution was also vacated.
Deceased Name
Monica Anyango
Issues
- Whether the Applicant deserves an Order of Stay of Execution pending the hearing and determination of the intended Appeal, given the delay and the Respondent's declaratory suit against the insurer.
- Whether the Applicant has met the threshold for grant of Leave to file Appeal out of time against the Judgment and Decree under Section 79G of the Civil Procedure Act, considering the 30-day deadline and the explanation for delay.
Holdings
The court dismissed the Applicant's Notice of Motion application dated 19th August, 2020 seeking Leave to lodge an Appeal out of time against the Judgment and Decree entered against the Applicant. The court found the length of the delay (over 3 months) inexcusable as the Applicant failed to provide satisfactory reasons for the delay. The Application for Leave to Appeal out of time having been declined, the issue of Stay of Execution pending the hearing and determination of the Intended Appeal is spent, and the interim orders of Stay of Execution against Judgment and Decree in Mombasa Senior Principal Magistrate Court, Civil suit No.2351 of 2018 issued on 26th August, 2020 are hereby vacated.
Remedies
- Application dismissed entirely with costs to respondents
- Interim orders of Stay of Execution against Judgment and Decree in Mombasa Senior Principal Magistrate Court, Civil suit No.2351 of 2018 issued on 26th August, 2020 are hereby vacated
Legal Principles
The court applied Section 79G of the Civil Procedure Act regarding appeals out of time, emphasizing the requirement to demonstrate 'good and sufficient cause' for the delay. Key considerations included the length of the delay (over 3 months), lack of satisfactory explanation for the delay, absence of material to support the appeal's merit, and the potential prejudice to the respondent. The court also referenced the discretionary nature of such applications, as established in Paul Musili Wambua Vs. Attorney General [2015] eKLR and Thuita Mwangi Vs. Kenya Airways [2003] eKLR.
Succession Regime
The case is not primarily focused on the succession regime but involves an appeal related to the estate of Monica Anyango.
Precedent Name
- Thuita Mwangi Vs Kenya Airways
- Paul Musili Wambua Vs. Attorney General & 2 Others
Cited Statute
Civil Procedure Act
Judge Name
D. O. Chepkwony
Passage Text
- the matters which a court takes into account in deciding whether to grant an extension of time are: the length of the delay, the reason for the delay, the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted
- the Applicant's Notice of Motion application dated 19th August, 2020 seeking Leave to lodge an Appeal out of time against the Judgment and Decree entered against the Applicant has no merit and the same is hereby dismissed entirely with costs to the Respondents
- the length of the delay is inexcusable as the period of delay has not been explained by the Applicant to the satisfaction of this Court for it to exercise its discretion in favour of the Applicant. That it is this Court's view that the Applicant was awoken from slumber when the Respondent filed a declaratory suit against Directline Assurance Co. Ltd