Harrison Munyi v Douglas Mbugua Mungai [2015] KECA 833 (KLR)
- Court
- Court of Appeal
- Case number
- 833
- Citation
- [2015] KECA 833 (KLR)
The application is dismissed with costs to the applicant, and the respondent is given a chance to lodge the appeal on terms that are just. If the respondent fails to do so, the application shall stand allowed with costs, and the notice of appeal shall be struck out and the stay of execution vacated.
Facts
The respondent filed a notice of appeal against the High Court judgment, but failed to file the record of appeal within 60 days. The applicant sought to strike out the notice of appeal and vacate the stay of execution.
Issues
- Whether the respondent's delay in filing the appeal should be allowed
- Whether the respondent's failure to file the record of appeal should result in the strike out of the notice of appeal and vacating the stay of execution
Reasoning
The court found the respondent's delay unusual and insufficient concrete steps taken to obtain the proceedings. The court considers it in the interest of justice to give the respondent a chance to appeal.
Outcome
Application dismissed with costs to the applicant, and the respondent given a chance to appeal.
Orders
- The application is dismissed with costs to the applicant
- The respondent shall file and serve the record of appeal within sixty (60) days
- In default of filing the record of appeal or serving it within 60 days, the application shall stand allowed with costs
- The notice of appeal dated 30th and lodged on the same day shall stand struck out without any further orders of the court
- The order of stay of execution granted on 23rd October, 2010 in Civil Application No. Nai 167 of 2010 shall stand vacated without any further order of the Court
Remedies
- Costs to the applicant
- Chance to appeal given to the respondent
Authorities cited
Cases cited (3)
- Rule 82(1) of the Court of Appeal Rules, 2010
- Rule 83 of the Court of Appeal Rules, 2010
- Shah v Patel & Others – Civil Application No.139 of 2011
Loading judgment…