A. Introduction
1. The Applicant moved this court by a Notice of Motion dated 10 th November, 2025, under Order 42 Rule 6, Order 50 Rule 6 and Order 51 Rule 1 of the CPR, 2010 seeking leave to be allowed to appeal out of time and equally a stay of execution pending the hearing and determination of the appeal.
2. The application is propped by the grounds on its face and the affidavit sworn on 10 th November, 2025 by the applicant. The basis of the intended appeal is that there are weighty issues of law and facts which render the appeal to have high chances of success. Further, the delay in filing the appeal was inadvertent and not intentional by dint of the applicant’s previous counsel indolence who failed to inform him of the outcome of the Ruling as delivered on 3 rd October, 2025, and only learnt of the same upon service of a proclamation notice on 6 th November, 2025.
3. The Respondent vide a Replying Affidavit sworn on 17 th November, 2025 has opposed the application on grounds that he has been unjustly deprived of funds lawfully and finally adjudged due, notwithstanding the Applicant’s full knowledge of the decree. That, the award is substantial, and the continued non-payment inflicts real prejudice as it denies the Respondent the time value of money, escalates enforcement and auctioneer costs, disrupts legitimate financial commitments, and heightens the risk of dissipation. Further, that the Applicant was indolent and took no steps whatsoever to pay the decretal sum and /or prosecute an appeal within the statutory window despite service of the decree and taxation notice on 14 th October 2025 and only stirred after proclamation on 6 th November 2025.
4. That, in the alternative, and without prejudice to the foregoing, the respondent proposes the Applicant pay 100% of the decretal sum in a joint account of counsels within limited timelines, settle the Auctioneers fees on the proclamation and pay throw away costs.
5. The matter was further canvassed by way of written submissions, specifically dated 25 th November, 2025 by the applicant and dated 24 th November, 2025 by the respondent, which arguments, persuasive authorities cited and the position of law, this court has aptly considered, and determines as hereunder.
B. Analysis and Determination
6. The twin issues for determination are whether or not the applicant should be granted leave to file appeal out of time wherefore a stay of execution pending the hearing and determination of the appeal be issued.
7. Section 79G of the Civil Procedure Act reads:
“Time for filing appeals from subordinate courts Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
8. Further, Order 50, Rule 6 of the CPR, 2010 provides that:
“Where a limited time has been fixed for doing any act or taking any proceedings under these rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise”
9. The Court of Appeal in Thuita Mwangi v Kenya Airways Ltd [2003]eKLR upheld the issues to be considered in considering application for extension of time to file appeal as stated in its decision in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, (Civil Application No. Nairobi 255 of 1997) (1999)2 EA which was relied on by the respondents the court expressed itself thus:
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted”.
10. In the instant, the trial court delivered its judgment on the 3 rd October, 2025. The application seeking leave to file appeal out of time was filed on the 11 th November, 2025. This court finds that there was no inordinate delay in bringing the instant application. As to the justification for the delay in filing the appeal was a result of his previous counsel’s indolence in informing hi of the outcome of the case. The court is inclined to find good cause for the delay which in any case was not inordinate.
11. On the issue of whether the appeal is arguable, whereas it was noted as a possible criterion in Leo Sila Mutiso v Rose Hellen Wangari Mwangi , (supra), the Court of Appeal in in Thuita Mwangi v Kenya Airways Ltd [supra] stated that:
“It must not be forgotten that even the recent case of Mutiso did not lay it down that the single judge is obliged to consider the issue of the chances of an appeal succeeding; the case only put that issue down as one for possible consideration.”
12. It would therefore follow that the court declines to deal with whether the appeal is arguable or has high chances of success at this juncture. It would follow that the court shall in the interest of justice grant leave to appeal upon terms as to filing of the Memorandum of Appeal and the Record of Appeal.
13. As regards stay of execution pending appeal, Order 42 Rule 6(2) of the Civil Procedure Rules requires of the applicant to prove the substantial loss it stands to suffer should order of stay not issue. The court, in RWW v EKW [2019] eKLR , considered the purpose of a stay of execution order pending appeal, in the following words:
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
9. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
14. The court considers that the sum of Kshs.10,250,000/=, is substantial if it is paid and not recovered in the event of successful appeal. In balancing the interests of the appellant who pursues an opportunity to be heard on the merits of his case and that of the respondent decree holder who seeks to benefit from the fruits of his judgment and take care to protect the appellant from irreparable loss in the event of a successful appeal, the court shall make an order that 50% of the decretal sum be deposited in an interest earning account to be held by both advocates for the parties to this appeal as security and deposit in court a Bank Guarantee from a reputable bank for the balance of the decretal sum both within (14) fourteen days. In default, lawful execution shall issue.
C. Disposition
15. Accordingly, I find that the application dated 10 th November, 2025 is meritorious to the extent held hereinabove and the same is allowed as follows:
a. Leave to appeal out of time is granted.
b. Memorandum of Appeal to be filed with 14 days.
c. Stay of execution of the judgment of the trial court of of 3 rd October, 2025 is granted subject to the payment of 50% of the decretal sum in an interest earning account to be held by both advocates for the parties to this appeal as security, and deposit in court a bank guarantee from a reputable bank for the balance of the decretal sum, both within 14 days hereafter.
d. In default, order for stay of execution to lapse and execution to issue.
Orders accordingly.
DATED, SIGNED and DELIVERED at MOMBASA Virtually this…17th…...day of…December...………2025.
W. K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPLICANT(S)............................
FOR THE RESPONDENT(S).............................
COURT ASSISTANT...................................
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1. The Applicant moved this court by a Notice of Motion dated 10 th November, 2025, under Order 42 Rule 6, Order 50 Rule 6 and Order 51 Rule 1 of the CPR, 2010 seeking leave to be allowed to appeal out of time and equally a stay of execution pending the hearing and determination of the appeal.
2. The application is propped by the grounds on its face and the affidavit sworn on 10 th November, 2025 by the applicant. The basis of the intended appeal is that there are weighty issues of law and facts which render the appeal to have high chances of success. Further, the delay in filing the appeal was inadvertent and not intentional by dint of the applicant’s previous counsel indolence who failed to inform him of the outcome of the Ruling as delivered on 3 rd October, 2025, and only learnt of the same upon service of a proclamation notice on 6 th November, 2025.
3. The Respondent vide a Replying Affidavit sworn on 17 th November, 2025 has opposed the application on grounds that he has been unjustly deprived of funds lawfully and finally adjudged due, notwithstanding the Applicant’s full knowledge of the decree. That, the award is substantial, and the continued non-payment inflicts real prejudice as it denies the Respondent the time value of money, escalates enforcement and auctioneer costs, disrupts legitimate financial commitments, and heightens the risk of dissipation. Further, that the Applicant was indolent and took no steps whatsoever to pay the decretal sum and /or prosecute an appeal within the statutory window despite service of the decree and taxation notice on 14 th October 2025 and only stirred after proclamation on 6 th November 2025.
4. That, in the alternative, and without prejudice to the foregoing, the respondent proposes the Applicant pay 100% of the decretal sum in a joint account of counsels within limited timelines, settle the Auctioneers fees on the proclamation and pay throw away costs.
5. The matter was further canvassed by way of written submissions, specifically dated 25 th November, 2025 by the applicant and dated 24 th November, 2025 by the respondent, which arguments, persuasive authorities cited and the position of law, this court has aptly considered, and determines as hereunder.
B. Analysis and Determination
6. The twin issues for determination are whether or not the applicant should be granted leave to file appeal out of time wherefore a stay of execution pending the hearing and determination of the appeal be issued.
7. Section 79G of the Civil Procedure Act reads:
“Time for filing appeals from subordinate courts Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
8. Further, Order 50, Rule 6 of the CPR, 2010 provides that:
“Where a limited time has been fixed for doing any act or taking any proceedings under these rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed: Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise”
9. The Court of Appeal in Thuita Mwangi v Kenya Airways Ltd [2003]eKLR upheld the issues to be considered in considering application for extension of time to file appeal as stated in its decision in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, (Civil Application No. Nairobi 255 of 1997) (1999)2 EA which was relied on by the respondents the court expressed itself thus:
“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay: secondly, the reason for the delay: thirdly (possibly), the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted”.
10. In the instant, the trial court delivered its judgment on the 3 rd October, 2025. The application seeking leave to file appeal out of time was filed on the 11 th November, 2025. This court finds that there was no inordinate delay in bringing the instant application. As to the justification for the delay in filing the appeal was a result of his previous counsel’s indolence in informing hi of the outcome of the case. The court is inclined to find good cause for the delay which in any case was not inordinate.
11. On the issue of whether the appeal is arguable, whereas it was noted as a possible criterion in Leo Sila Mutiso v Rose Hellen Wangari Mwangi , (supra), the Court of Appeal in in Thuita Mwangi v Kenya Airways Ltd [supra] stated that:
“It must not be forgotten that even the recent case of Mutiso did not lay it down that the single judge is obliged to consider the issue of the chances of an appeal succeeding; the case only put that issue down as one for possible consideration.”
12. It would therefore follow that the court declines to deal with whether the appeal is arguable or has high chances of success at this juncture. It would follow that the court shall in the interest of justice grant leave to appeal upon terms as to filing of the Memorandum of Appeal and the Record of Appeal.
13. As regards stay of execution pending appeal, Order 42 Rule 6(2) of the Civil Procedure Rules requires of the applicant to prove the substantial loss it stands to suffer should order of stay not issue. The court, in RWW v EKW [2019] eKLR , considered the purpose of a stay of execution order pending appeal, in the following words:
“The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.
9. Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent.”
14. The court considers that the sum of Kshs.10,250,000/=, is substantial if it is paid and not recovered in the event of successful appeal. In balancing the interests of the appellant who pursues an opportunity to be heard on the merits of his case and that of the respondent decree holder who seeks to benefit from the fruits of his judgment and take care to protect the appellant from irreparable loss in the event of a successful appeal, the court shall make an order that 50% of the decretal sum be deposited in an interest earning account to be held by both advocates for the parties to this appeal as security and deposit in court a Bank Guarantee from a reputable bank for the balance of the decretal sum both within (14) fourteen days. In default, lawful execution shall issue.
C. Disposition
15. Accordingly, I find that the application dated 10 th November, 2025 is meritorious to the extent held hereinabove and the same is allowed as follows:
a. Leave to appeal out of time is granted.
b. Memorandum of Appeal to be filed with 14 days.
c. Stay of execution of the judgment of the trial court of of 3 rd October, 2025 is granted subject to the payment of 50% of the decretal sum in an interest earning account to be held by both advocates for the parties to this appeal as security, and deposit in court a bank guarantee from a reputable bank for the balance of the decretal sum, both within 14 days hereafter.
d. In default, order for stay of execution to lapse and execution to issue.
Orders accordingly.
DATED, SIGNED and DELIVERED at MOMBASA Virtually this…17th…...day of…December...………2025.
W. K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPLICANT(S)............................
FOR THE RESPONDENT(S).............................
COURT ASSISTANT...................................
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