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ELRCDismissedKakamega CMCC No. 151 of 2019 (application dated December 8, 2022)· [2023] KEELRC 546 (KLR)

Kenya Aids NGOs Consortium (KANCO) v Okumu (Miscellaneous Application 1 of 2022) [2023] KEELRC 546 (KLR)

High Court of Kenya
2 March 2023
JKJ. W. Keli
2,201 words in judgment
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The bottom line

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A Kenyan court refused to release money deposited as appeal security, holding the delay in filing the appeal wasn't the debtor's fault.

What this practically means

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Executive summary

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This ruling of the High Court at Bungoma (J.W. Keli, J) determined a Notice of Motion dated December 8, 2022 by Linda Achieng Okumu, the decree holder in Kakamega CMCC No. 151 of 2019, seeking release of KES 582,769 deposited in court as security by the judgment debtor, Kenya AIDS NGO's Consortium. The deposit had been made pursuant to an order of October 13, 2022 granting conditional stay of execution pending an intended appeal and leave to file the appeal out of time, with a 30-day period to file the notice, memorandum and record of appeal. The decree holder argued no appeal documents had been filed within that period and that proceedings were unnecessary to lodge a memorandum of appeal, relying on Haron E. Egechi Nyaberi v British American Insurance Co. Ltd. The judgment debtor opposed, contending it had complied with the deposit condition and that the delay arose from the trial court registry's failure to furnish certified typed proceedings, despite requests and an application for a certificate of delay. The court found the deposit condition had been satisfied and that allowing release of the funds would amount to turning against its own order. It held the question of non-compliance with the leave order was premature, the delay being justified by the non-availability of proceedings, and that locking the appellant out of appeal would violate Article 48 of the Constitution. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether failure to file the memorandum and record of appeal within 30 days warranted release of the deposited security

Holding

The application was premature because the delay was caused by the non-availability of certified typed proceedings from the trial court

Reasoning

The court noted the respondent had complied with the deposit condition for stay. The certified typed proceedings had not been availed by the trial court registry despite requests. Releasing the deposit would turn the court against its own order and allow execution to proceed. Article 48 of the Constitution would be violated by locking the gates of appeal where there was sufficient cause for the delay.

p. 5
02

Whether certified typed proceedings were necessary before filing a memorandum of appeal

Holding

The court held it was speculation to assert a memorandum could be filed without the proceedings, since an appellant may need to verify the record of the trial

Reasoning

The applicant argued, relying on Haron E. Egechi Nyaberi v British American Insurance Co. Ltd, that filing a memorandum of appeal is the gate-opening step requiring no proceedings. The court distinguished this, holding an appellant may need to confirm the evidence recorded at trial, and the delay was justified by the registry's inability to furnish proceedings.

p. 4

Legal principles established

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  • An appeal is not deemed filed until the memorandum of appeal and record of appeal have been filed and served
  • A court will not allow execution to proceed where the condition for stay (deposit of security) has been complied with

Court orders

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  1. 1.The application dated December 8, 2022 is dismissed as premature
  2. 2.Each party to bear own costs in the application

Authorities

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Legislation

  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50

Cases cited (1)

  • Haron E. Egechi Nyaberi v British American Insurance Co. Ltd
    (2012) eKLR
On appeal from
Chief Magistrate's Court at Kakamega
Kakamega CMCC No. 151 of 2019
Jurisdiction invoked
Section 79G and Section 95 of the Civil Procedure Act; Order 51 Rule 1 and Order 42 Rule 6(2) of the Civil Procedure Rules; Article 48 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Aids NGOs Consortium (KANCO) v Okumu (Miscellaneous Application 1 of 2022) [2023] KEELRC 546 (KLR)", Case Analysis (2023). Kakamega CMCC No. 151 of 2019 (application dated December 8, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/546/eng@2023-03-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.