1. The Court below delivered a judgment on 14th November 2025. The applicant was aggrieved by it and now seeks to file an appeal against the same. He avers that although the judgment was delivered on 14th November 2025, his counsel was only able to access the decision on 29th January 2026, when it was posted. Immediately, the decision was made available, the instant the application was filed. The application is dated 29th January 2026.
2. The application seeks the following prayers:_
1. Spent;
2. That this honourable Court be pleased to stay execution of the judgment and decree in Mombasa CMCC No E787 of 2023 delivered on 14th November 2025 pending the hearing and determination of the application interpartes;
3. That this honourable Court be pleased to grant leave to the applicant to appeal out of time against the judgment in Mombasa CMCC No E787 of 2023 delivered on 14th November 2025
4. That the firm of KRK Advocates LLP be allowed to come on record in the place of Kairu & Mc Court & Co;
5. That upon prayers 2, 3 and 4 being granted, this honourable Court be pleased to order the decretal sum of Kes.1,523,149 be deponed in Court as security pending the hearing and determination of the intended appeal; and
6. That the costs of this application abide the outcome of the intended appeal.
3. In addition to the averments he made in regard to the delay in obtaining the judgment, it was averred that the appellant would suffer substantial loss and damage, as there was a likelihood that he would be unable to recover the decretal sum if the appeal was successful. It was further urged that the appeal was arguable and had a high chance of success. He averred that the delay in filing the appeal was inadvertent and that he stood to suffer irreparable loss and damage.
4. The assertions made by the applicant were contested by the respondent vide an affidavit sworn by Amos Mwangi Ngamau on 11th February 2026. The deponent stated that the judgment of the Court below was posted on the same date it was delivered, and that a letter was written to the applicant’s counsel on 24th November 2025, vide which they were advised of the Court's decision. Counsel contended that no plausible, reasonable explanation was given for the failure on the part of the applicant to comply.
5. The respondent, however, stated that in the event the Court was inclined to grant the orders sought, it should be on condition that the entire decretal sum of Kes. 1,513,149 be deposited in a joint interest-earning account in the name of both parties' counsel within 7 days.
6. The application was canvassed by way of written submissions. The applicant's submissions are dated 29th February 2026. Those of the respondent are dated 10th March 2026.
7. I have read and taken into account the parties’ submissions. I must now determine whether to extend the time within which the appeal ought to be filed, and, secondly, whether to stay execution of the impugned decision pending appeal, in the event I grant the applicant leave to appeal out of time.
8. Courts have the discretion to extend the time for the filing of an appeal. I may extend such time if, in my view, the period of delay is not inordinate, the reasons for the delay have been provided, the reasons are cogent, and the respondent wouldn’t be unduly prejudiced (see Edith Gichugu Koine v Stephen Njagi Thoithi [2014]eKLR).
9. The applicant’s counsel urged that the application was filed shortly after the judgment was posted on CTS. Counsel submitted that a delay of 43 days in this case was not inordinate, given the reasons provided. This submission is contested by the respondent’s counsel, who urged that the judgment was available immediately. The rival assertions could have been settled easily if the parties had filed a printout of the judgment posted on CTS. Such a printout bears a timestamp, which would settle the matter.
10. Having stated as foregoing, it would appear to me that the applicant was aware of the judgment and opted to be tardy. Should the Court excuse his conduct? In the interest, I grant the applicant leave to appeal out of time; I do so reluctantly.
11. Having granted leave to appeal, I note that there is no appeal at present. Annexed to the applicant’s affidavit as annexure “AH2” is a draft Memorandum of Appeal. There is no prayer in the Motion for the said draft to be deemed duly filed upon payment of Court fees.
12. This Court cannot grant a stay of execution pending appeal when no appeal has been filed. Stay orders cannot be issued in vacuo; there must be a pending appeal. In the circumstances, I am not persuaded that an order to stay the execution of the impugned judgment can issue.
13. In view of the foregoing, the orders that commend themselves to me are the following:
1. Leave is hereby granted to the applicant to file an appeal out of time. The Memorandum of Appeal shall be filed within 14 days of the date hereof. In the event of default, the leave hereby granted shall lapse;
2. I award the Respondent the costs of the application, to be agreed or taxed.
14. It is so ordered.
Dated and signed this 23rd day of April 2026. Delivered virtually through Microsoft TEAMS.
2. The application seeks the following prayers:_
1. Spent;
2. That this honourable Court be pleased to stay execution of the judgment and decree in Mombasa CMCC No E787 of 2023 delivered on 14th November 2025 pending the hearing and determination of the application interpartes;
3. That this honourable Court be pleased to grant leave to the applicant to appeal out of time against the judgment in Mombasa CMCC No E787 of 2023 delivered on 14th November 2025
4. That the firm of KRK Advocates LLP be allowed to come on record in the place of Kairu & Mc Court & Co;
5. That upon prayers 2, 3 and 4 being granted, this honourable Court be pleased to order the decretal sum of Kes.1,523,149 be deponed in Court as security pending the hearing and determination of the intended appeal; and
6. That the costs of this application abide the outcome of the intended appeal.
3. In addition to the averments he made in regard to the delay in obtaining the judgment, it was averred that the appellant would suffer substantial loss and damage, as there was a likelihood that he would be unable to recover the decretal sum if the appeal was successful. It was further urged that the appeal was arguable and had a high chance of success. He averred that the delay in filing the appeal was inadvertent and that he stood to suffer irreparable loss and damage.
4. The assertions made by the applicant were contested by the respondent vide an affidavit sworn by Amos Mwangi Ngamau on 11th February 2026. The deponent stated that the judgment of the Court below was posted on the same date it was delivered, and that a letter was written to the applicant’s counsel on 24th November 2025, vide which they were advised of the Court's decision. Counsel contended that no plausible, reasonable explanation was given for the failure on the part of the applicant to comply.
5. The respondent, however, stated that in the event the Court was inclined to grant the orders sought, it should be on condition that the entire decretal sum of Kes. 1,513,149 be deposited in a joint interest-earning account in the name of both parties' counsel within 7 days.
6. The application was canvassed by way of written submissions. The applicant's submissions are dated 29th February 2026. Those of the respondent are dated 10th March 2026.
7. I have read and taken into account the parties’ submissions. I must now determine whether to extend the time within which the appeal ought to be filed, and, secondly, whether to stay execution of the impugned decision pending appeal, in the event I grant the applicant leave to appeal out of time.
8. Courts have the discretion to extend the time for the filing of an appeal. I may extend such time if, in my view, the period of delay is not inordinate, the reasons for the delay have been provided, the reasons are cogent, and the respondent wouldn’t be unduly prejudiced (see Edith Gichugu Koine v Stephen Njagi Thoithi [2014]eKLR).
9. The applicant’s counsel urged that the application was filed shortly after the judgment was posted on CTS. Counsel submitted that a delay of 43 days in this case was not inordinate, given the reasons provided. This submission is contested by the respondent’s counsel, who urged that the judgment was available immediately. The rival assertions could have been settled easily if the parties had filed a printout of the judgment posted on CTS. Such a printout bears a timestamp, which would settle the matter.
10. Having stated as foregoing, it would appear to me that the applicant was aware of the judgment and opted to be tardy. Should the Court excuse his conduct? In the interest, I grant the applicant leave to appeal out of time; I do so reluctantly.
11. Having granted leave to appeal, I note that there is no appeal at present. Annexed to the applicant’s affidavit as annexure “AH2” is a draft Memorandum of Appeal. There is no prayer in the Motion for the said draft to be deemed duly filed upon payment of Court fees.
12. This Court cannot grant a stay of execution pending appeal when no appeal has been filed. Stay orders cannot be issued in vacuo; there must be a pending appeal. In the circumstances, I am not persuaded that an order to stay the execution of the impugned judgment can issue.
13. In view of the foregoing, the orders that commend themselves to me are the following:
1. Leave is hereby granted to the applicant to file an appeal out of time. The Memorandum of Appeal shall be filed within 14 days of the date hereof. In the event of default, the leave hereby granted shall lapse;
2. I award the Respondent the costs of the application, to be agreed or taxed.
14. It is so ordered.
Dated and signed this 23rd day of April 2026. Delivered virtually through Microsoft TEAMS.