Anastacia Kagoko Chogi & another v James Wachira Kagema [2020] eKLR Case Summary

Court
High Court of Kenya at Nyahururu
Category
Civil
Judge(s)
R.P.V. Wendoh
Judgment Date
September 29, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
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Case Brief: Anastacia Kagoko Chogi & another v James Wachira Kagema [2020] eKLR

1. Case Information:
- Name of the Case: Anastacia Kagoko Chogi & Kamende Francis Mwangi v. James Wachira Kagema & Anne Wanjiku Kinuthia (suing as the legal representatives of the late Elijah Karimi Kagema)
- Case Number: Civil Appeal No. 73 of 2018
- Court: High Court of Kenya at Nyahururu
- Date Delivered: September 29, 2020
- Category of Law: Civil
- Judge(s): R.P.V. Wendoh
- Country: Kenya

2. Questions Presented:
The court must resolve the following central legal issues:
1. Whether the applicants have satisfied the conditions for granting leave to file an appeal out of time.
2. Whether the applicants have met all the conditions for granting an order of stay pending appeal.

3. Facts of the Case:
The applicants, Anastacia Kagoko Chogi and Kamende Francis Mwangi, filed a motion against the respondents, James Wachira Kagema and Anne Wanjiku Kinuthia, who are the legal representatives of the estate of the late Elijah Karimi Kagema. The applicants sought various orders, including a stay of execution of a judgment delivered on December 4, 2018, which had not been complied with. They claimed that they had not been served with the warrants of sale and that their vehicles had been unlawfully taken, leading to a risk of irreparable loss if the execution continued.

4. Procedural History:
The applicants filed their motion on August 30, 2019, seeking a stay of execution and other related orders. The application was opposed by the respondents, who argued that the motion was made in bad faith and lacked merit. The trial court dismissed the applicants' motion on August 6, 2019, leading to the current appeal. The applicants subsequently sought to file an appeal out of time, arguing that they had an arguable case that warranted consideration.

5. Analysis:
- Rules: The court considered relevant provisions from the Civil Procedure Rules, particularly Order 42 Rule 6, which outlines the conditions for granting a stay of execution. The conditions include demonstrating that substantial loss may result, that the application has been made without unreasonable delay, and that the applicant has provided security for the due performance of the decree.

- Case Law: The court cited several precedents, including *Carter & Sons Ltd v. Deposit Protection Fund Board* and *Butt v. Rent Restriction Tribunal*, emphasizing that the burden is on the applicant to demonstrate substantial loss and to provide security. The court also referenced *Paul Musili Wambua v. Attorney General* regarding the exercise of discretion in extending time for filing appeals.

- Application: The court found that the applicants failed to provide a satisfactory explanation for the delay in filing their appeal, which was approximately nine months. Additionally, they did not demonstrate that they would suffer substantial loss if the stay was not granted, nor did they establish that the respondents were unable to repay the decretal amount if the appeal succeeded. The court concluded that the applicants had not met the conditions necessary for granting the orders sought.

6. Conclusion:
The court dismissed the application for leave to file an appeal out of time and for a stay of execution, stating that the applicants had not satisfied the necessary legal conditions. The ruling emphasized the importance of adhering to procedural requirements and the consequences of inaction by the applicants.

7. Dissent:
There were no dissenting opinions noted in this case.

8. Summary:
The High Court of Kenya dismissed the application by Anastacia Kagoko Chogi and Kamende Francis Mwangi for leave to appeal out of time and for a stay of execution. The court ruled that the applicants failed to meet the required legal standards, emphasizing the necessity of demonstrating substantial loss and providing security. This decision underscores the importance of timely action in civil proceedings and the need for parties to substantiate their claims adequately.

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