Ikuuni Hotel Ltd v Serah Nundu Nthaku [2020] eKLR Case Summary

Court
High Court of Kenya at Machakos
Category
Civil
Judge(s)
Odunga, J.
Judgment Date
October 27, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Ikuuni Hotel Ltd v Serah Nundu Nthaku [2020] eKLR


1. Case Information:
- Name of the Case: Ikuuni Hotel Ltd v. Serah Nundu Nthaku
- Case Number: Miscellaneous Application No. 57 of 2020
- Court: High Court of Kenya at Machakos
- Date Delivered: October 27, 2020
- Category of Law: Civil
- Judge(s): Odunga, J.
- Country: Kenya

2. Questions Presented:
The central legal issues for the court's resolution are:
1. Whether the applicant, Ikuuni Hotel Ltd, should be granted leave to appeal out of time against the judgment delivered in Machakos CMCC No. 165 of 2019.
2. Whether the court should stay the execution of the judgment pending the outcome of the intended appeal.

3. Facts of the Case:
The applicant, Ikuuni Hotel Ltd, sought orders from the court to appeal out of time and to stay the execution of a judgment that was delivered electronically without the applicant's presence. The applicant argued that the judgment was entered without sufficient evidence regarding the existence of a debt, as the respondent, Serah Nundu Nthaku, failed to produce any supporting documents or contractual arrangements. The applicant attributed the delay in filing the appeal to the restrictions imposed by the COVID-19 pandemic, which affected the operations of law firms and courts.

4. Procedural History:
The case progressed through the following key stages:
- The applicant filed a Motion on Notice on June 23, 2020, seeking leave to appeal out of time and a stay of execution.
- The respondent opposed the application, arguing that the judgment had been properly communicated and that the applicant's reasons for delay were insufficient.
- Both parties cited previous cases to support their arguments regarding the criteria for granting leave to appeal out of time and for staying execution.

5. Analysis:
- Rules: The court considered Section 79G of the Civil Procedure Act, which allows for an appeal to be admitted out of time if the appellant shows good and sufficient cause for the delay. The court also referenced principles guiding the exercise of discretion in granting such applications.

- Case Law: The court cited several precedents, including:
- *Chris Munga N. Bichage v. Richard Nyagaka Tongi & 2 Others* and *Nicholas Kiptoo Arap Korir Salat v. The IEBC & 7 Others* which discussed the criteria for extending time for appeals.
- *County Executive of Kisumu v. County Government of Kisumu & 8 Others*, emphasizing the need for a satisfactory explanation for any delay in filing an appeal.

- Application: The court found that the applicant's delay was largely due to the unprecedented circumstances caused by the COVID-19 pandemic, which hindered legal operations. The court also noted that both parties should not be blamed for the inability to act within the prescribed time limits. The applicant demonstrated a willingness to comply with court directions and had raised arguable issues regarding the merits of the intended appeal.

6. Conclusion:
The court granted the applicant leave to file the appeal out of time, allowing the Memorandum of Appeal to be filed and served within ten days. The court also considered the principles for granting a stay of execution and decided to grant the stay on conditions, including a partial payment to the respondent and depositing the balance in a joint interest-earning account.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The High Court of Kenya at Machakos ruled in favor of Ikuuni Hotel Ltd, granting them leave to appeal out of time against the judgment in favor of Serah Nundu Nthaku. The court also stayed the execution of the judgment on the condition that the applicant pays part of the decretal sum and deposits the remaining amount in a joint account. This case underscores the court's willingness to adapt to extraordinary circumstances like the COVID-19 pandemic while balancing the rights of both parties involved.

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