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JudgmentGITONGA NGORE EDWARD VS EDNA MORAA ABERE3 min read

GITONGA NGORE EDWARD VS EDNA MORAA ABERE

High Court at Voi High Court · · George. Dulu


  1. Before me is an application by way of Notice of Motion dated 29th January 2024 filed through counsel Kimondo Gachoka & Company Advocates for the applicant.
  2. The application was brought under Order 2 Rule 4, 6 and 7 of the Civil Procedure Rules, as well as Section 79G of the Civil Procedure Act (Cap.21), and seeks the following orders:-
  3. (Spent).
  4. (Spent).
  5. That the court be pleased to order a stay of execution of the judgment of the Chief Magistrate’s Court at Voi SPMCC 15 of 2023 delivered on 8th December 2023 by Hon. T. N. Sinkiyian Principal Magistrate pending hearing an determination of the intended appeal.
  6. That this court be pleased to grant the applicant leave to file an appeal out of time.
  7. That as a condition for stay of execution pending the hearing and determination of appeal/intended appeal this court be pleased to direct that the applicant/appellant be and is hereby ordered to provide/issue security for the entire decretal sum/amount in the form of a Bank Guarantee to be issued by Family Bank Ltd.
  8. That the court be pleased to give directions on the appeal.
  9. That the costs of this application abide the outcome of the appeal.
  10. The application was filed with a supporting affidavit sworn by Gitonga Ngore Edward the applicant herein in which it was deponed that if the orders sought are not granted the respondent will proceed to execute and the applicant will thus suffer substantial loss.
  11. The application is opposed through a replying affidavit sworn on 4th February 2024 by Edna Moraa Abere the respondent, in which it was deponed that the applicant has not demonstrated a clear case for the grant of leave to appeal out of time, and that the draft memorandum of appeal was only on quantum of damages, and that the request for stay of execution also, not being based on any sound or acceptable reasons, should be declined.
  12. The application was canvassed through written submissions.  In this regard, I have perused and considered the submissions filed by Kimondo Gachoka & Company Advocates for the applicant, as well as the submissions filed by Njoroge Mwangi & Company Advocates for the respondent.
  13. This is an application both for enlargement of time to file an appeal, and an application for stay of execution of judgment or decree pending appeal.
  14. I have perused and considered the application and documents filed, as well as the rival submissions filed by counsel for the parties.
  15. This court has discretionary power under Section 79G of the Civil Procedure Act (Cap.21) to enlarge time to appeal.  This court also has discretionary power under Order 42 Rule 6 of the Civil Procedure Rules, to grant stay of execution of judgment or decree pending appeal.  In both cases, the primary consideration is for the court to do justice to both parties, considering the particular circumstances of each case.
  16. In the present case, I note that judgment was delivered by the Magistrate’s court on 8th December 2023 and this application filed on 29th January 2024.  In those circumstances, I find no inordinate delay in filing this application.
  17. I am also of the view that if the enlargement of time orders sought are not granted, the applicant will suffer substantial loss, as that refusal will shut the applicant out of his right to litigate his appeal in court, for its determination on merits.  I will extend time to appeal.
  18. However, as the grounds of the intended appeal are on quantum of damages, in my view, stay of execution orders can only be justified, if the applicant pays the respondent part of the decretal amount.
  19. I thus allow the application and order as follows:-
  20. Leave to appeal out of time is granted.  The appeal will be filed within fourteen (14) days from today.
  21. Stay of execution of judgment or decree is hereby granted pending hearing and determination of the intended appeal, provided the applicant pays the respondent through counsel part of the decretal amount – Kshs. 80,000/ within 45 days from today.
  22. In default of (ii) above, the say orders herein granted will automatically lapse and be of no effect.
  23. Costs of the application will abide the determination of the appeal.

Dated, signed and delivered this 5th day of June 2024 at Voi in open court.

In the presence of:-

Alfred/Trizah – Court Assistants

Mr. Ndolo for applicant

Mr. Kazungu for respondent

    GITONGA NGORE EDWARD VS EDNA MORAA ABERE GITONGA NGORE EDWARD VS EDNA MORAA ABERE