Evelyne Chepkurui Milgo & another v Antique Auctions Agencies [2019] KEELC 986 (KLR)
The bottom line
#The High Court let a late appeal proceed but refused to pause the lower court ruling, showing Kenya's courts will excuse delay yet won't stay orders that merely dismiss a request.
What this practically means
#Executive summary
#Key legal issues
#Leave to appeal out of time
Leave granted despite the applicant satisfying only two of the four extension-of-time tests, because no memorandum of appeal need first be filed and justice is better served by allowing the appeal
The court applied the four tests: length of delay (one and a half months, not unreasonable), reason for delay (none validly established for want of full and frank disclosure of dates), chances of success (poor), and prejudice (none beyond costs). The respondents' argument that section 79G requires a filed memorandum was rejected on authority. Justice favoured granting leave.
Stay pending intended appeal
Stay refused because no appeal had been filed and the ruling sought to be stayed was a negative order dismissing an injunction
Order 42 rule 6 presupposes a filed appeal; the applicant had filed none, only an unsigned, undated and unfiled draft memorandum. Further, the ruling of 11th September 2018 merely dismissed her injunction application, so there was no positive order whose execution could be stayed.
Legal principles established
#- A memorandum of appeal need not be filed before an order for extension of time under the proviso to section 79G is granted
- Stay of execution under Order 42 rule 6 can only be granted where an appeal has been filed and there is a positive order capable of being stayed
Court orders
#- 1.The prayer for stay pending hearing and determination of an intended appeal is dismissed
- 2.Leave granted to the applicant to file an appeal against the ruling delivered on 11th September 2018 out of time
- 3.Memorandum of Appeal to be filed and served within 14 days, in default the Notice of Motion dated 26th November 2018 shall stand dismissed with costs to the respondents
- 4.Costs of Notice of Motion dated 26th November 2018 awarded to the respondents in any event
- On appeal from
- Chief Magistrate's Court, Nakuru
- CMCC No. 815 of 2015
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act; Order 42 rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evelyne Chepkurui Milgo & another v Antique Auctions Agencies [2019] KEELC 986 (KLR)", Case Analysis (2019). Notice of Motion dated 26th November 2018 (arising from CMCC No. 815 of 2015, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/986/eng@2019-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.