English Press Limited v Ben Simiyu Buyobo [2018] KEELRC 304 (KLR)
The bottom line
#A Kenyan court allowed a company to file its appeal four days late and froze the judgment debt, provided the full amount was safely deposited.
What this practically means
#Executive summary
#Key legal issues
#Extension of time to lodge an appeal out of time
The 4-day delay was explained by miscommunication between the applicant's insurers and its advocates, which the respondent did not materially dispute; the delay was excusable and extension was granted.
The application was made promptly, only four days after lapse of time. The reason given was miscommunication between the applicant's advocates and its insurers. The respondent opposed on grounds of abuse of process and afterthought but did not controvert the facts of the delay. The court found the delay explained and excusable, and the appeal arguable, notably on quantum.
Stay of execution pending the intended appeal
Stay was granted conditional upon the applicant depositing the full decretal sum in an interest-earning account in the joint names of the parties' advocates.
The applicant was amenable to security conditions for prompt satisfaction of the decree should the appeal fail. The respondent did not file an affidavit opposing the applicant's claim that the decretal sum might not be recovered if paid out and the appeal succeeded. The court therefore granted stay subject to the deposit condition, balancing security of the decree with preservation of the appeal.
Legal principles established
#- A short delay in lodging an appeal, if satisfactorily explained, is excusable and warrants extension of time.
- Stay of execution may be granted on condition that the decretal sum be secured in an interest-earning joint account.
Court orders
#- 1.Stay of execution of the judgment and decree given by Hon. Peter Muholi, Senior Resident Magistrate on 15th August 2018 in CMCC No. 2017 of 2017, subject to the applicant depositing the full decretal sum in an interest earning account in the joint names of the parties' advocates by 21.12.2018, pending hearing and determination of the intended appeal
- 2.Extension of time and leave for the applicant to lodge a memorandum of appeal by 21.12.2018 against the judgment of 15th August 2018
- 3.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- Magistrates' Court
- CMCC No. 2017 of 2017
- Jurisdiction invoked
- Section 3A and 79G of the Civil Procedure Act; Orders 22 rule 22, 42 rule 4, 50 rule 6 and 51 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "English Press Limited v Ben Simiyu Buyobo [2018] KEELRC 304 (KLR)", Case Analysis (2018). CMCC No. 2017 of 2017 (intended appeal; application dated 18.09.2018, filed 19.09.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/304/eng@2018-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.