Kenneth Sumba Khakina v Nanchang Foreign Engineering Company Limited [2017] KEHC 7150 (KLR)
- Court
- High Court of Kenya
- Case number
- 7150
- Citation
- [2017] KEHC 7150 (KLR)
- Decided
- 28 February 2017
The application is granted on the following terms: leave to file appeal out of time is allowed, the memorandum of appeal shall be filed within 7 days, and there shall be a stay of execution until the determination of the appeal.
Facts
The applicant secured a judgment against the respondent in the lower court, but the respondent moved to set aside the judgment. Execution proceedings were initiated, and a motor vehicle was attached and later sold to a third party. The lower court set aside the judgment and ordered the respondent to deposit the decretal sum and not transfer the vehicle to third parties. Execution had already taken place by the time the lower court issued the stay of execution.
Issues
- Whether the applicant can file an appeal out of time
- Whether the lower court's order to stay execution can be enforced
Reasoning
The court allows the appeal due to the serious arguable point that execution had already taken place by the time the lower court made the order to set aside the judgment and stay the transfer of the vehicle. The delay in filing the appeal is explained and the court considers it sufficient.
Outcome
The application is granted.
Orders
- Leave to file appeal out of time is allowed
- The memorandum of appeal shall be filed within 7 days
- There shall be a stay of execution until the determination of the appeal
Remedies
- The applicant, the auctioneer, and the advocate are likely to suffer irreparable damage if the order is not granted
- The money realised from the auction shall be deposited with the court within 14 days from the date of this ruling
Authorities cited
Legislation (1)
- Civil Procedure Act
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