Patrick Castro Mwongela & another v Faith Mwende Nthiwa [2020] eKLR Case Summary

Court
High Court of Kenya at Machakos
Category
Civil
Judge(s)
Odunga, J.
Judgment Date
October 28, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Patrick Castro Mwongela & another v Faith Mwende Nthiwa [2020] eKLR


1. Case Information:
- Name of the Case: Patrick Castro Mwongela & Peter Mulwa Muinde v. Faith Mwende Nthiwa
- Case Number: Misc. Application No. 84 of 2020
- Court: High Court of Kenya at Machakos
- Date Delivered: October 28, 2020
- Category of Law: Civil
- Judge(s): Odunga, J.
- Country: Kenya

2. Questions Presented:
The court must resolve the following central legal issues:
1. Whether the applicants should be granted leave to appeal out of time against the judgment of the Chief Magistrate's Court.
2. Whether execution of the judgment should be stayed pending the hearing and determination of the intended appeal.

3. Facts of the Case:
The applicants, Patrick Castro Mwongela and Peter Mulwa Muinde, were ordered by the Chief Magistrate's Court to pay the respondent, Faith Mwende Nthiwa, Kshs 2,027,000.00 as general and special damages following a judgment delivered on June 15, 2020. The applicants claim they were unaware of the judgment due to their previous advocate's departure without a proper handover, leading to a lapse in the appeal period by July 15, 2020. They argue that the intended appeal is meritorious and that they face substantial loss if the judgment is executed before the appeal is heard.

4. Procedural History:
The applicants filed a Motion on Notice on July 21, 2020, seeking to appeal out of time and to stay execution of the judgment. The respondent opposed the application, asserting that the applicants were aware of the judgment and that their application was a delaying tactic. The court considered the submissions from both parties regarding the merits of the application, the reasons for delay, and the legal framework governing appeals and stays.

5. Analysis:
- Rules: The court referenced relevant provisions of the Civil Procedure Act, particularly Section 79G, which allows for appeals out of time with a demonstration of good and sufficient cause, and Section 3A, which grants the court inherent powers to ensure justice is served.

- Case Law: The court cited previous cases such as *Wachira Karani v. Bildad Wachira* [2016] eKLR, which emphasized the need for courts to allow appeals to be heard on their merits, and *Bake ‘N’ Bite (Nrb) Limited v. Daniel Mutisya Mwalonzi* [2015] eKLR, which clarified that an applicant only needs to show an arguable appeal to obtain a stay pending appeal.

- Application: The court found that the applicants' reasons for delay were not sufficiently substantiated, particularly the claim of lack of knowledge of the judgment. The court also noted that the application for stay pending appeal could not be granted without a properly filed appeal, which was lacking in this case due to procedural irregularities involving the change of advocates without court approval.

6. Conclusion:
The court ruled that the application was incompetent and struck it out with costs to the respondent. The decision underscored the importance of adhering to procedural rules and timelines in civil litigation, emphasizing that failure to comply with these rules undermines the judicial process.

7. Dissent:
There were no dissenting opinions as the ruling was delivered by a single judge, and the decision was unanimous in its conclusion regarding the incompetence of the application.

8. Summary:
The High Court of Kenya struck out the application by Patrick Castro Mwongela and Peter Mulwa Muinde, seeking to appeal out of time and stay execution of a judgment against them. The ruling highlighted the necessity for compliance with procedural requirements and the importance of timely appeals in the civil justice system. The case serves as a reminder of the critical nature of proper legal representation and adherence to court rules in ensuring fair access to justice.

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