John Maina Njuguna. v Esther Njambi.

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MISCELLANEOUS CIVIL APPLICATION NO. 983 OF 2013 JOHN MAINA NJUGUNA. ……………… APPLICANT/DEFENDANT VERSUS ESTHER NJAMBI. …………….. RESPONDENT/DECREE HOLDER RULING The application before the court is the Notice of Motion dated 7th October, 2013. It seeks two prayers: a. That the applicant be given leave to appeal out of time. b. That there be a stay of execution pending the hearing and final determination of the intended appeal. The facts upon which the application is based show that the lower court judgment was delivered in the absence of the applicant and without relevant notice having been served on him. The facts also show that the applicant only realized that judgment had been delivered against him in Thika CMCC No. 224 of 2009 for Ksh.800,000/- when execution of a court decree for Ksh.921,353/- was being carried out on 19 th September, 2013. The Applicant filed at the lower an application for stay of the execution dated 25 th September, 2013 but he had to withdraw it for technical reasons. He was unable to file an appeal because he realized he was out of time. So he argues, he had to file this application seeking leave to file an appeal out of time as well as stay execution of the decree until the intended appeal is finally determined. The applicant further urges this court that unless there is a stay granted, if the appeal is allowed to be filed out of time, he will likely suffer a substantial loss as the Respondent is made of strew and will likely not be able to refund the decretal sum if the appeal succeeds. That he filed the application without inordinate delay and that in any case, he would be willing to comply with any conditions imposed by court in granting the stay, inclusive of depositing the decretal sum in a savings interest-earning account. On the other hand, the Respondent argued that there was no proof that she will not be able to refund the decretal sum if paid to her and saw this application as time consuming and intended to deny her the realization of her judgment. I have perused the application and carefully considered the representations from both sides. There is no denial or opposition from the Respondent to the fact that the applicant had not been served with the notice to attend court on judgment day. The respondent ought to have served such notice but did not. The applicant, therefore only knew of the judgment during execution of the decree which took place after the time for appeal had expired. The filing of this application was accordingly timely. He cannot be penalized

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