Annah Anyango Odhiambo (Suing as the Legal Representative of the Estate of Flora Anudo Ogembo (Deceased) v Zakaria Ogare Odero & another [2022] KEELC 1151 (KLR)
The bottom line
#Kenya's High Court let a deceased woman's family appeal late, but refused to pause the case because the judgment required no action to be stopped.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of over three months in seeking leave to appeal out of time was sufficiently explained
The delay was sufficiently explained by the death of the plaintiff before judgment, the need to obtain a limited grant of letters of administration ad litem, and the time taken by the family to give instructions to counsel
The court noted the judgment was delivered on 3/8/2021 and the application filed on 9/12/2021, over three months later. It nonetheless accepted that the plaintiff died on 20/5/2021 before judgment, and the family legitimately needed time to obtain a limited grant ad litem (obtained 16/8/2021), reorganise and instruct counsel. The explanation covered the whole period of delay, so leave was granted.
Whether stay of execution of the lower court judgment could issue pending appeal
Stay was refused because the judgment in the lower court was negative and there was no order capable of being stayed
The court distinguished between the leave to appeal, which it granted, and the stay of execution, which it refused. Since the judgment in Winam CMCELC No. 108 of 2018 was negative in character, no decree requiring execution existed, and consequently there was nothing to stay pending the appeal.
Legal principles established
#- A stay of execution cannot issue in respect of a negative judgment because there is no positive order to stay
- Delay in instituting an appeal may reasonably be excused where the deceased plaintiff's family had to obtain letters of administration ad litem and give instructions to counsel
Court orders
#- 1.Leave granted to the applicant to file the appeal out of time in terms of prayer 2 of the Notice of Motion
- 2.Costs in the cause
- On appeal from
- Winam Chief Magistrate's Court (ELC)
- CMCELC No. 108 of 2018
- Jurisdiction invoked
- Inherent discretion of the court to extend time for filing an appeal and grant stay of execution pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Annah Anyango Odhiambo (Suing as the Legal Representative of the Estate of Flora Anudo Ogembo (Deceased) v Zakaria Ogare Odero & another [2022] KEELC 1151 (KLR)", Case Analysis (2022). Not stated in the judgment (arising from Winam CMCELC NO. 108 OF 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1151/eng@2022-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.